I also wish to refer to Document Number 1639-PS, which we offer as. . .

DR. KRAUS: The Prosecution has just made the motion to accept in

supplementary evidence a number of documents concerning the Defendant

Schacht. These documents are contained in a supplementary volume which

we received after the special case against the Defendant Schacht had

been finished, even a considerable time afterwards.

I do not intend to protest against this procedure; but in my opinion

this procedure, if admitted by the Court, has some consequences for

Defense Counsel. If this procedure is approved, we ought also to be

permitted to offer evidential material on behalf of our clients after

this case has been concluded and until the end of the entire

presentation of evidence, if we feel that such evidential material, that

is, mainly documents, should still be submitted on behalf of our

clients.

It is necessary that we should be in a position also to present

witnesses later on, and I should like to ask the Tribunal for

clarification of this.

THE PRESIDENT: Yes, Dr. Kraus, the Tribunal thinks that the Prosecution

are entitled to apply, as they have applied, to have these documents

admitted in evidence and, similarly, that the defendants will be

entitled to apply to have any evidence which they wish offered in

evidence even after the individual defendants’ case has come to an end.

DR. KRAUS: Thank you, Sir.

MR. DODD: Now I wish to refer to the document bearing our Number

1639-PS, which we wish to offer as Exhibit Number USA-777. For the

benefit of the Tribunal, this document is entitled _Mobilization Book

for the Civil Administrations_ and is the 1939 edition. It was published

in February—or put out in February 1939, over the signature of the

Defendant Keitel as Chief of the OKW. It is classified “top secret” and

was distributed in 125 copies to the highest Reich Ministries, as well

as to the Army, Navy, and Air Force.

In its original German the document runs to some 150 pages. We have had

translated into English, Russian, and French Pages 2 to 18, which give

the essential text of the document. It appears from statements in the

document itself that the _Mobilization Book_ had previously been issued

and was revised annually. This particular book which we introduce, or

offer to introduce, was effective the 1st day of April 1939 and thus was

the operative basis, we say, for the mobilization calendar at the time

the Nazis launched their aggression against Poland. However, we wish to

relate it back primarily to that part of the record dealing with the

Nazi plans and preparations for aggression, because the _Mobilization

Book_, or such a _Mobilization Book_, had been in effect for years prior

to 1939.

Secondly, we say it fits in with the secret Nazi Defense Laws of 1935

and 1938, which are contained in Documents 2261-PS and 2194-PS,

introduced before the Tribunal as Exhibits USA-24 and 36 respectively.

Thirdly, it is another clear indication, we submit, of the Nazi plans

and preparations for aggressive war. That portion of the Prosecution’s

case dealing with Nazi preparations for aggression was presented by Mr.

Alderman of the American prosecution staff at the morning and afternoon

sessions of the Tribunal on 27 November 1945 and may be found at Pages

399 to 464 of the record (Volume II, Pages 303-347).

Inasmuch as this document has been translated into all four languages,

we assume that it is not necessary to read it into the record; but we do

wish to quote, however, directly two extracts—rather, we will withdraw

that. They are included in the translation and I see no necessity for

reading it into the translation system.

This document was also, I might say, referred to by the Chief Prosecutor

for the United States in his opening address, and it is the only

document therein referred to which has not been offered formally to the

Tribunal in evidence.

Thirdly, I should like to take up one other matter. I wish to move to

strike out one piece of evidence offered by an American member of the

Prosecution.

[_Mr. Dodd then quoted the evidence in question._]

THE PRESIDENT: Has the Defendant Rosenberg’s counsel any objection to

this being struck out of the record?

DR. THOMA: I have no objection, Sir.

THE PRESIDENT: Then it will be struck out.

MR. DODD: I have only one last matter, which I am sure I can conclude

before the usual recess time.

In the course of the presentation of the individual case against the

Defendant Ribbentrop, our distinguished colleague Sir David

Maxwell-Fyfe, the Deputy Chief British Prosecutor, introduced Document

Number 3358-PS as Exhibit GB-158. This was on the 9th day of January

1946 and may be found at Page 2380 of the record (Volume V, Page 17).

This document is a German Foreign Office circular dated the 25th day of

January 1939, and it is on the subject of the “Jewish Question as a

Factor in German Foreign Policy in the Year 1938.” Sir David read

portions of this document into the record, including the first sentence

of the full paragraph appearing on Page 3 of the English translation of

the document.

I have discussed the matter with Sir David, and he has very graciously

agreed that we might ask the permission of the Tribunal to add two more

sentences to the quotation which he read, because we feel, and Sir David

feels with us, that the additional two sentences which follow

immediately the sentence which he read add something to the proof with

reference to the persecution of the Jews as related to Crimes against

Peace. It is desired, therefore, by the Prosecution that the entire

paragraph on Page 3 of the English translation of this document be

considered as in evidence by the Tribunal, and in accordance with the

ruling of the Tribunal generally made as to other such situations we

submit now an English, German, French, and Russian translation of that

entire paragraph to obviate the necessity for reading it; and the

original, of course, is in the German language.

It is a very brief paragraph, but I don’t think that the Tribunal would

care to have me read it, even to take a minute or two. It is in the

record. There are only two additional sentences. It does not wrench

anything from the text; in our opinion, it only adds a little to the

proof. If you would like to have it read, I can do so.

THE PRESIDENT: Yes, I think we would.

MR. DODD: The sentence read by Sir David reads as follows:

“It is certainly no coincidence that the fateful year 1938

brought nearer the solution of the Jewish question

simultaneously with the realization of the ‘idea of Greater

Germany,’ since the Jewish policy was both the basis and

consequence of the events of the year 1938.”

That is the end of the sentence, and that is what was quoted by Sir

David on the 9th day of January, at Page 2380 (Volume V, Page 17). We

wish to add the following, beginning right after that sentence:

“The advance made by Jewish influence and the destructive Jewish

spirit in politics, economy, and culture paralyzed the strength

and the will of the German people to rise again, perhaps even

more than the political antagonism of the former Allied enemy

powers of the World War.”

And this second sentence which follows immediately, as well:

“The curing of this malady of the people was therefore certainly

one of the most important prerequisites for exerting the force

which, in the year 1938, resulted in the consolidation of the

Great German Reich against the will of the world.”

We felt that that would add something to our proof with respect to this

persecution of the Jews. Those are the only matters I have to bring up

with reference to the record.

THE PRESIDENT: Some time ago I wrote to Mr. Justice Jackson on behalf of

the Tribunal, asking whether a list of the persons who formed the German

Staff could be submitted to the Tribunal. Has that been done?

MR. DODD: I am familiar with that communication. I recall Mr. Justice

Jackson’s showing it to me. If it has not, it shall be directly. It may

have been overlooked.

THE PRESIDENT: I had a letter back from Mr. Justice Jackson saying that

it should be done.

MR. DODD: Yes, I recall it.

THE PRESIDENT: And the Tribunal will be glad for you to verify that it

has been done.

MR. DODD: I am afraid I must say that if it hasn’t been done, it is

probably my fault. I recall the Justice’s handing it to me, and I think

I passed it to Colonel Taylor’s organization, but I will check up on it

directly and see that it is delivered.

THE PRESIDENT: It will be an appropriate time for it to be done, I

should think, during the course of the argument on the organizations, if

it hasn’t been done.

MR. DODD: Very well.

THE PRESIDENT: Yes, and an affidavit accompanying it, showing how it has

been made up.

MR. DODD: Very well, Your Honor.

Lieutenant Margolies tells me that he thinks it has been sent in 2 days

ago, but he is not certain.

THE PRESIDENT: He thinks it has been done?

MR. DODD: He thinks so, but we will look into it.

THE PRESIDENT: Yes, very well.

Then tomorrow morning at 10, Counsel for the Prosecution will be ready,

will they, to argue the case of the organizations which they have asked

the Tribunal to be declared criminal under Article 9 of the Charter?

MR. DODD: The Prosecution is prepared to be heard tomorrow morning at 10

o’clock on that.

THE PRESIDENT: And counsel for the various organizations are prepared to

argue against that? So that is understood that at 10 o’clock tomorrow

the Tribunal will sit for that purpose and will continue until the

argument is concluded.

DR. KUBUSCHOK: The Counsel for the organizations are prepared, according

to the Tribunal’s suggestion, to join in the discussion of the new

argument to be put forward by the Prosecution tomorrow. The Prosecution

has helped us by making available to us a copy of the factual points

which so far had not been submitted as a basis of the Indictment.

According to the Tribunal’s suggestion not only these factual points

would be discussed tomorrow but also new legal questions which have

arisen recently, inasmuch as they have bearing on the scope and

relevancy of the evidence. The Defense Counsel for the organizations

would be obliged if the Prosecution would beforehand make available to

us the speech they are going to give on legal questions tomorrow so that

we are in the position to answer immediately.

THE PRESIDENT: I don’t know, but we haven’t had any copy of any written

argument presented to us. I don’t know whether Counsel for the

Prosecution would say whether they have any written argument?

MR. DODD: Well, Sir David can speak much better for himself. What I was

going to say is what I said previously, that I am informed that he has

already presented his outline both to the Tribunal and to counsel.

Mr. Justice Jackson is still working on his remarks, and while he did

hope to submit a draft, late communications received only this morning

from interested persons in the War Department have made it necessary for

him to work right up to now, and therefore we think that the practical

difficulty results in not having a prepared statement to submit.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, I have prepared two

appendices which endeavor to cover the first two points in the

Tribunal’s statement of January, the elements of criminality and the

connected defendants mentioned in Article 9 of the Charter. I arranged

that copies in German should be given to all the Defense Counsel. I hope

everyone has got a copy. I have also arranged that copies be submitted

to the Tribunal.

I have added to that an addendum showing the references to the

transcript, and in some cases to the documents, on each of the points,

and I am afraid that is in English; but it is reference to paragraphs,

so it shouldn’t be difficult for the Defense Counsel to fit it into

their document.

I am afraid that it would be impossible to give a copy of the Justice’s

speech and mine. What I intended to add was largely on the facts which I

have endeavored to put before the Defense Counsel already, but if the

Defense Counsel for the organizations would care to hear informally what

is the sort of general line, I should be very pleased to tell them, if

it would be any help. I want to help in every way I can.

THE PRESIDENT: Yes, very well. We will now adjourn.

[_The Tribunal adjourned until 28 February 1946 at 1000 hours._]

SEVENTIETH DAY

Thursday, 28 February 1946

_Morning Session_

DR. HORN: Mr. President, on Monday, when I wished to give my reasons for

the application to call Winston Churchill as witness, the Tribunal asked

me to submit this in writing so that the Tribunal could make a decision.

The decision that Winston Churchill should not be called as witness was,

however, made already on the 26th of February, before the Tribunal

received my written application. I assume a mistake has been made, and I

ask the Tribunal to reconsider the question in the light of the reasons

set out in my written application.

THE PRESIDENT: The Tribunal will reconsider the matter.

Mr. Justice Jackson. Did you propose, Mr. Justice Jackson, to argue

first on the question of the organizations?

JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): If that

is agreeable to the Tribunal, that’s definitely our . . .

We are taking up, as I understand it, the deferred subject of the rules

which should guide in determining the criminality of organizations,

partly upon our initiative and partly an response to the questions

propounded by the Tribunal.

The unconditional surrender of Germany created for the victors novel and

difficult problems of law and administration. Being the first such

surrender of an entire and modernly organized society, precedents and

past experiences are of little help in guiding our policy toward the

vanquished. The responsibility implicit in demanding and accepting

capitulation of a whole people certainly must include a duty to

discriminate justly and intelligently between the opposing elements of

that population, which bore dissimilar relations to the policies and

conduct which led to the catastrophe. This differentiation is the

objective of those provisions of the Charter which authorize this

Tribunal to declare organizations or groups to be criminal.

Understanding of the problem with which the instrument attempts to deal

is essential to its interpretation and application.

One of the sinister peculiarities of German society at the time of the

surrender was that the state itself played only a subordinate role in

the exercise of political power, while the really drastic controls over

German society were organized outside of the nominal government. This

was accomplished through an elaborate network of closely knit and

exclusive organizations of selected volunteers, both bound to execute

without delay and without question the commands of the Nazi leaders.

These organizations penetrated the whole German life. The country was

subdivided into little Nazi principalities of about 50 households each,

and every such community had its recognized Party leaders, Party police,

and its undercover, planted spies. These were combined into larger units

with higher ranking leaders, executioners, and spies, the whole forming

a pyramid of power outside of the law, with the Führer at its apex, the

local Party officials constituting its broad base, which rested heavily

on the German population.

The Nazi despotism, therefore, did not consist of these individual

defendants alone. A thousand little Führers dictated; a thousand

imitation Görings strutted; a thousand Schirachs incited the youth; a

thousand Sauckels worked slaves; a thousand Streichers and Rosenbergs

stirred up hate; a thousand Kaltenbrunners and Franks tortured and

killed; a thousand Schachts and Speers and Funks administered and

supported and financed this movement.

The Nazi movement was an integrated force in every city and county and

hamlet. The party power resulting from this system of organizations

first rivaled and then dominated the power of the state itself. The

primary vice of this web of organizations was that they were used to

transfer the power of coercing men from the government and the law to

the Nazi leaders. Liberty, self-government, and security of person and

property do not exist except where the power of coercion is possessed

only by the state and is exercised only in obedience to law. The Nazis,

however, set up this private system of coercion outside of and immune

from the law, with Party-controlled concentration camps and firing

squads to administer privately decreed sanctions.

Without responsibility to law and without warrant from any court, they

were enabled to seize property and take away liberty and even take life

itself. These organizations had a calculated part—and a decisive

part—in the barbaric extremes of the Nazi movement. They served

primarily to exploit mob psychology and to manipulate the mob.

Multiplying the number of persons in a common enterprise always tends to

diminish the individual’s sense of moral responsibility and to increase

his sense of security. The Nazi leaders were masters of that technique.

They manipulated these organizations to make before the German populace

impressive exhibitions of numbers and of power, which have already been

shown on the screen. They were used to incite a mob spirit and then

riotously to gratify the popular hates they had inflamed and the

Germanic ambition they had inflated.

These organizations indoctrinated and practiced violence and terrorism.

They provided the systematized, aggressive, and disciplined execution

throughout Germany and the occupied countries of the plan for crimes

which we have proven. The flowering of this system is represented in the

fanatical SS General Ohlendorf, who told this Tribunal without shame or

trace of pity how he personally directed the putting to death of 90,000

men, women, and children. No tribunal ever listened to a recital of such

wholesale murder as this Tribunal heard from him and from Wisliceny, a

fellow officer of the SS. Their own testimony shows the SS

responsibility for the extermination program which took the lives of 5

million Jews—a responsibility that that organization welcomed and

discharged methodically, remorselessly, and thoroughly. These crimes

with which we deal are unprecedented, first because of the shocking

number of victims. They are even more shocking and unprecedented because

of the large number of people who united their efforts to perpetrate

them. All scruple or conscience of a very large segment of the German

people was committed to the keeping of these organizations, and their

devotees felt no personal sense of guilt as they went from one extreme

to another. On the other hand, they developed a contest in cruelty and a

competition in crime. Ohlendorf, from the witness stand, accused other

SS commanders whose killings exceeded his of “exaggerating” their

figures.

There could be no justice and no wisdom in an occupation policy of

Germany which imposed upon passive, unorganized, and inarticulate

Germans the same burdens as upon those who voluntarily banded themselves

together in these powerful and notorious gangs. One of the basic

requirements both of justice and of successful administration of the

occupation responsibility of our four countries is a segregation of the

organized elements from the masses of Germans for separate treatment.

That is the fundamental task with which we must deal here. It seems

beyond controversy that to punish a few top leaders but to leave this

web of organized bodies in the midst of postwar society would be to

foster the nucleus of a new Nazidom. These members are accustomed to an

established chain of centralized command. They have formed a habit and

developed a technique of both secret and open co-operation. They still

nourish a blind devotion to the suspended, but not abandoned, Nazi

program. They will keep alive the hates and ambitions which generated

the orgy of crime we have proven. These organizations are the carriers

from this generation to the next of the infection of aggressive and

ruthless war. The Tribunal has seen on the screen how easily an

assemblage that ostensibly is only a common labor force can in fact be a

military outfit training with shovels. The next war and the next pogroms

will be hatched in the nests of these organizations as surely as we

leave their membership with its prestige and influence undiminished by

condemnation and punishment.

The menace of these organizations is the more impressive when we

consider the demoralized state of German society. It will be years

before there can be established in the German State any political

authority that is not inexperienced and provisional. It cannot quickly

acquire the stability of a government aided by long habit of obedience

and traditional respect. The intrigue, obstruction, and possible

overthrow which older and established governments always fear from

conspiratorial groups is a real and present danger to any stable social

order in the Germany of today and of tomorrow.

Insofar as the Charter of this Tribunal contemplates a justice of

retribution, it is obvious that it could not overlook these organized

instruments and instigators of past crimes. In opening this case I said

that the United States does not seek to convict the whole German people

of crime. But it is equally important that this Trial shall not serve to

absolve the whole German people except 21 men in the dock. The wrongs

that have been done to the world by these defendants and their top

confederates were not done by their will and their strength alone. The

success of their designs was made possible because great numbers of

Germans organized themselves to become the fulcrum and the lever by

which the power of these leaders was extended and magnified. If this

Trial fails to condemn these organized confederates for their share of

the responsibility for this catastrophe, it will be construed as their

exoneration.

But the Charter was not concerned with retributive justice alone. It

manifests a constructive policy influenced by exemplary and preventive

considerations.

The primary objective of requiring that the surrender of Germany be

unconditional was to clear the way for a reconstruction of German

society on such a basis that it will not again threaten the peace of

Europe and of the world. Temporary measures of the occupation

authorities may by necessity, and I mean no criticism of them, have been

more arbitrary and applied with less discrimination than befits a

permanent policy. For example, under existing denazification policy, no

member of the Nazi Party or its formations may be employed, in any

position—other than ordinary labor—in any business enterprise, unless

he is found to have been only a nominal Nazi. Persons in certain

categories whose standing in the community is one of prominence or

influence are required to be, and others may be, denied further

participation in their businesses or professions. It is mandatory to

remove or exclude from public office and from positions of importance in

quasi-public and private enterprises persons falling within about 90

specified categories, deemed to consist of either active Nazis, Nazi

supporters, or militarists. Property of such persons is blocked.

Now, it is recognized by the Control Council, as it was by the framers

of this Charter, that a permanent long-term program should be based on a

more careful and more individual discrimination than was possible with

sweeping temporary measures. There is a movement now within the Control

Council for reconsideration of its whole denazification policy and

procedure. The action of this Tribunal in declaring, or in failing to

declare, an accused organization criminal has a vital bearing on this

future occupation policy.

It was the intent of the Charter to utilize the hearing processes of

this Tribunal and its judgment to identify and condemn those Nazi and

militaristic forces that were so strongly organized as to constitute a

continuing menace to the long-term objectives for which our respective

countries have spent their young lives. It is in the light of this great

purpose that we must examine the provisions of this Charter.

It was obvious that the conventional litigation procedures could not,

without some modification, be adapted to this task. No system of

jurisprudence has yet evolved any satisfactory technique for handling a

great number of common charges against a great multitude of accused

persons. The number of individual defendants that fairly can be tried in

a single proceeding probably does not greatly exceed the number now in

your dock. Also, the number of separate trials in which the same

voluminous evidence as to a common plan must be repeated is very limited

in actual practice. Yet, adversary proceedings of the type in which we

are engaged are the best assurance the law has ever evolved that

decisions will be well-considered and just. The task of the framers of

the Charter was to find some way to overcome the obstacles to

practicable and early decision without sacrificing the fairness implicit

in hearings. The solution prescribed by the Charter is certainly not

faultless, but not one of its critics has ever proposed an alternative

that would not either deprive the individual of all hearing or

contemplate such a multitude of long trials that it would break down and

be impracticable. In any case, this Charter is the plan adopted by our

respective governments and our duty here is to make it work.

The plan which was adopted in the Charter essentially is a severance of

the general issues which would be common to all individual trials from

the particular issues which would differ in each trial. The plan is

comparable to that employed in certain wartime legislation of the United

States, dealt with in the case of _Yakus versus United States_, in which

questions as to the due process quality of the order must be determined

in a separate tribunal and cannot be raised by a defendant when he is

defending on indictment. Those countries which do not have written

constitutions and constitutional issues may find it difficult to follow

the logic of that decision, but essentially the plan was to separate

general issues relative to the order as a whole from specific issues

which would arise when an individual was confronted with a charge of

guilt.

The general issues under this Charter are to be determined with finality

in one trial before the International Tribunal, and in that trial every

accused organization must be defended by counsel and must be represented

by at least one leading member, and other individuals may apply to be

heard. Their applications may be granted if the Tribunal thinks justice

requires it. The only issue in this trial concerns the collective

criminality of the organization or group. It is to be adjudicated by

what amounts to a declaratory judgment. It does not decree any

punishment either against the organization or against individual

members.

The only specification as to the effect of this Tribunal’s declaration

that an organization is criminal is contained in Article 10, which, if

you will bear with me, I will read:

“In cases where a group or organization is declared criminal by

the Tribunal, the competent national authority of any Signatory

shall have the right to bring individuals to trial for

membership therein before national, military, or occupation

courts.

“In any such case the criminal nature of the group or

organization is considered proved and shall not be questioned.”

Unquestionably, it would have been competent for the Charter to have

declared flatly that membership in any of these named organizations is

criminal and should be punished accordingly. If there had been such an

enactment, it would not have been open to an individual, who was being

tried for membership, to contend that the organization was not in fact,

criminal. But the framers of the Charter, acting last summer at a time

before the evidence which has been adduced here was even available to

us, did not care to find organizations criminal by fiat. They left that

issue to determination after relevant facts were developed by adversary

proceedings. Plainly, the individual is better off because of the

procedure of the Charter, which leaves that finding of criminality to

this body after hearings at which the organization must, and the

individual may, be represented. It is at least the best assurance that

we could devise, that no mistake would be made in dealing with these

organizations.

Under the Charter, the groups and organizations named in the Indictment

are not on trial in the conventional sense of that term. They are more

nearly under investigation as they might be before a grand jury in

Anglo-American practice. Article 9 recognizes a distinction between the

declaration of a group or organization as criminal and “the trial of any

individual member thereof.” The power of the Tribunal to try is confined

to “persons,” and the Charter does not expand that term by definition,

as statutes sometimes do, to include other than natural persons. The

groups or organizations named in the Indictment were not as entities

served with process. The Tribunal is not empowered to impose any

sentence upon them as entities. For example, it may not levy a fine upon

them even though they have property of the organization, nor convict any

person because of membership.

It is also to be observed that the Charter does not require subsequent

proceedings against anyone. It provides only that the competent national

authorities shall have the right to bring individuals to trial for

membership therein.

The Charter is silent as to the form that these subsequent trials should

take. It was not deemed wise, on the information then available, that

the Charter should regulate subsequent proceedings. Nor was it necessary

to do so. There is a continuing legislative authority, representing all

four signatory nations, competent to take over where the Charter leaves

off. Legislative supplementation of the Charter, of course, would be

necessary in any event to confer jurisdiction on local courts, to define

their procedures, and to prescribe different penalties for different

forms of activity.

Fear has been expressed, however, that the Charter’s silence as to

future proceedings means that great numbers of members will be rounded

up and automatically punished as a result of a declaration that an

organization is criminal. It also has been suggested that this is, or

may be, the consequence of Article II, 1(d) of Control Council Act

Number 10, which defines as a crime “membership in categories of a

criminal group or organization declared criminal by the International

Military Tribunal.” A purpose to inflict punishment without a right of

hearing cannot be spelled out of this Charter and would be offensive to

both its letter and its spirit. And I do not find in Control Council Act

Number 10 any inconsistency with the Charter. Of course, to reach all

individual members would require numerous hearings, but they will

involve only narrow issues. Many persons will have no answers to charges

if they are carefully prepared; and the proceedings should be

expeditious, nontechnical, and held in the locality where the person

accused resides, and, incidentally, may be conducted in two languages at

most.

And I think it is clear that before any person is punishable for

membership in a criminal organization, he is entitled to a hearing on

the facts of his case. The Charter does not authorize the national

authorities to punish membership without hearing—it gives them only the

right to “bring individuals to trial.” That means what it says. A trial

means there is something to try.

The Charter denies only one of the possible defenses of an accused; he

may not relitigate the question in a subsequent trial whether the

organization itself was a criminal one. Nothing precludes him from

denying that his participation was voluntary and proving that he acted

under duress; he may prove that he was deceived or tricked into

membership; he may show that he had withdrawn or he may prove that his

name on the rolls is a case of mistaken identity.

The membership which the Charter and the Control Council Act make

criminal, of course, implies a genuine membership involving the volition

of the member. The act of affiliation with the organization must have

been intentional and voluntary. Legal compulsion or illegal duress,

actual fraud or trick of which one is a victim has never been thought to

be the victim’s crime, and such an unjust result is not to be implied

now. The extent of the member’s knowledge of the criminal character of

the organization is, however, another matter. He may not have known on

the day he joined but may have remained a member after learning the

facts. And he is chargeable not only with what he knew but with all of

which he was reasonably put on notice.

There are safeguards to assure that this program will be carried out in

good faith. Prosecution under this declaration is discretionary. If

there were purpose on the part of the Allied Powers to punish these

persons without trial, it would have been already done before this

Tribunal was set up, and without waiting for its declaration. We think

that the Tribunal will presume that the signatory powers which have

voluntarily submitted to this process will carry it out faithfully.

The Control Council Act applies only to categories of membership

declared criminal. This language on the part of the Control Council

recognizes a power in this Tribunal to limit the effect of its

declaration. I do not think, for reasons which I will later state, that

this should be construed or availed of to try any issue here as to

subgroups or sections or individuals which can be tried in later

proceedings. It should, I think, be construed to mean, not the sort of

limitation which must be defined by evidence of details, but limitations

of principle such as those I have already outlined, such as duress,

involuntary membership, or matters of that kind, which the Tribunal can

recognize and deal with without taking detailed evidence. It does not

require this Tribunal to delve into evidence to condition its judgment

to apply only to intentional and voluntary membership. This does not

supplant later trials by the declaration of this Tribunal but guides

them.

It certainly cannot be said that such a plan—such as we have here for

severance of the general issues common to many cases from the particular

issues applicable only to individual defendants for litigation in

separate tribunals specially adapted for the different kinds of

issues—is lacking in reasonableness or fair play. And while it presents

unusual procedural difficulties, I do not think it presents any

insurmountable ones. I will discuss the question of the criteria and the

principles and the precedents for declaring collective criminality

before coming to the procedural questions involved. The substantive law

which governs the inquiry into criminality of organizations is, in its

large outline, old and well settled and fairly uniform in all systems of

law. It is true that we are dealing here with a procedure which would be

easy to abuse and one that is often feared as an interference with

liberty of assembly or as an imposition of guilt by association. It also

is true that proceedings against organizations are closely akin to the

conspiracy charge, which is the great dragnet of the law and rightly

watched by courts lest it be abused.

The fact is, however, that every form of government has considered it

necessary to treat some organizations as criminal. Not even the most

tolerant of governments can permit an accumulation of private power in

organizations to a point where it rivals, obstructs, or dominates the

government itself. To do so would be to grant designing men a liberty to

destroy liberty. The very complacency and tolerance, as well as the

impotence, of the Weimar Republic towards the growing organization of

Nazi power spelled the death of German freedom.

Protection of the citizen’s liberty has required even free governments

to enact laws making criminal those aggregations of power which threaten

to impose their will on unwilling citizens. Every one of the nations

signatory to this Charter has laws making certain types of organizations

criminal. The Ku Klux Klan in the United States flourished at about the

same time as the Nazi movement in Germany. It appealed to the same

hates, practiced the same extra-legal coercions, and likewise terrorized

by the same sort of weird nighttime ceremonials. Like the Nazi Party it

was composed of a core of fanatics, but it enlisted the support of

respectabilities who knew it was wrong but thought it was winning. It

eventually provoked a variety of legislative acts directed against such

organizations as organizations.

The Congress of the United States also has enacted legislation outlawing

certain organizations. A recent example was on the 28th of June 1940,

when the Congress provided that it shall be unlawful for any person,

among other things, to organize or help to organize any society, group,

or assembly of persons to teach, advocate, or encourage the overthrow or

destruction of any government in the United States by force or violence,

or to be or become a member of, or affiliate with, any such society,

group, or assembly of persons, knowing the purposes thereof.

There is much legislation by states of the American Union creating

analogous offenses. An example is to be found in the act of California

dealing with criminal syndicalism, which, after defining it, makes

criminal any person who organizes, assists in organizing, or is, or

knowingly becomes, a member of such organization.

Precedents in English law for outlawing organizations and punishing

membership therein are old and consistent with the Charter.

One of the first is the British India Act Number 30, enacted in 1836,

which, among other things, provides:

“It is hereby enacted that whoever shall be proved to have

belonged, either before or after the passing of this Act, to any

gang of thugs, either within or without the territories of the

East India Company, shall be punished with imprisonment for life

with hard labor.”

And the history is that this was a successful act in suppressing

violence.

Other precedents in English legislation are the Unlawful Societies Act

of 1799, the Seditious Meetings Act of 1817, the Seditious Meetings Act

of 1846, the Public Order Act of 1936, and Defense Regulations 18(b).

The latter, not without opposition, was intended to protect the

integrity of the British Government against the fifth-column activities

of this same Nazi conspiracy.

Soviet Russia punishes as a crime the formation of and membership in a

criminal gang. Criminologists of the Soviet Union call this crime the

“crime of banditry,” a term altogether appropriate to these German

organizations. General Rudenko will advise this Tribunal more in detail

as to the Soviet law.

French criminal law makes membership in subversive organizations a

crime. Membership of the criminal gang is a crime in itself. My

distinguished French colleague will present you more detail on that.

Of course, I would not contend that the law of a single country, even

one of the signatory powers, was governing here, but it is clear that

this is not an act or a concept of a single system of law, that all

systems of law agree that there are points at which organizations become

intolerable in a free society.

For German precedents, it is neither seemly nor necessary to go to the

Nazi regime, which, of course, suppressed all their adversaries

ruthlessly. However, under the Empire and the Weimar Republic German

jurisprudence deserved respect, and it presents both statutory and

juridical examples of declaring organizations to be criminal. Statutory

examples are: The German Criminal Code enacted in 1871. Section 128 was

aimed against secret associations, and 129 against organizations

inimical to the State. A law of March 22, 1921, against paramilitary

organizations. A law of July 1922 against organizations aimed at

overthrowing the constitution of the Reich.

Section 128 of the Criminal Code of 1871 is especially pertinent. It

reads:

“The participation in an organization, the existence,

constitution, or purposes of which are to be kept secret from

the government, or in which obedience to unknown superiors or

unconditional obedience to known superiors is pledged, is

punishable by imprisonment.”

It would be difficult to draw an act that would more definitely condemn

the organizations with which we are dealing here than this German

Criminal Code of 1871. I recall to your attention that it condemns

organizations in which obedience to unknown superiors or unconditional

obedience to known superiors is pledged. It is exactly the sort of

danger and menace with which we are dealing.

Under the Empire various Polish national unions were the subject of

criminal prosecutions. Under the Republic, in 1927 and 1928, judgments

held criminal the entire Communist Party of Germany. In 1922 and 1928,

judgments of the courts ran against the political leadership corps of

the Communist Party, which included all of its so-called body of

functionaries. This body of functionaries in that organization

corresponded somewhat in their powers to the Leadership Corps of the

Nazi Party, which we have accused here. The judgment against the

Communist Party rendered by the German courts included every cashier,

every employee, every delivery boy and messenger, and every district

leader. In 1930 a judgment of criminality against what was called “The

Union of Red Front Fighters” of the Communist Party made no distinction

between leaders and ordinary members.

Most significant of all is the fact that on the 30th of May 1924

judgment of the German courts was rendered that the whole Nazi Party was

a criminal organization. Evidently there was a lack of courage to

enforce that judgment, or we might not have been here. This decision

referred not only to the Leadership Corps, which we are indicting here,

but to all other members as well. The whole rise of the Nazi Party to

power was in the shadow of this judgment of illegality by the German

courts themselves.

The German courts, in dealing with criminal organizations, proceeded on

the theory that all members were held together by a common plan in which

each one participated, even though at different levels. Moreover,

fundamental principles of responsibility of members as stated by the

German Supreme Court are strikingly like the principles that govern our

Anglo-American law of conspiracy. Among the statements by the German

courts are these:

That it is a matter of indifference whether all the members pursued the

forbidden aims. It is enough if a part exercised the forbidden activity.

And again, that it is a matter of indifference whether the members of

the group or association agree with the aims, tasks, means of working,

and means of fighting.

And again, that the real attitude of mind of the participants is a

matter of indifference. Even if they had the intention of not

participating in criminal efforts, or hindering them, this cannot

eliminate their responsibility from real membership.

Organizations with criminal ends are everywhere regarded as in the

nature of criminal conspiracies, and their criminality is judged by

application of conspiracy principles. The reason why they are offensive

to law-governed people has been succinctly stated by an American legal

authority as follows, and I quote from _Miller on Criminal Law_:

“The reason for finding criminal liability in case of a

combination to effect an unlawful end or to use unlawful means,

where none would exist, even though the act contemplated were

actually committed by an individual, is that a combination of

persons to commit a wrong, either as an end or as a means to an

end, is so much more dangerous, because of its increased power

to do wrong, because it is more difficult to guard against and

prevent the evil designs of a group of persons than of a single

person, and because of the terror which fear of such a

combination tends to create in the minds of the people.”

The Charter in Article 6 provides that:

“Leaders, organizers, instigators, and accomplices participating

in the formulation or execution of a Common Plan or Conspiracy

to commit any of the foregoing crimes are responsible for all

acts performed by any persons in execution of such plan.”

That, of course, is a statement of the ordinary law of conspiracy. The

individual defendants are arraigned at your bar on this charge of

conspiracy which, if proved, makes them responsible for the acts of

others in execution of the common plan.

The Charter did not define responsibility for the acts of others in

terms of “conspiracy” alone. The crimes were defined in nontechnical but

inclusive terms, and embraced formulating and executing a common plan,

as well as participating in a conspiracy. It was feared that to do

otherwise might import into the proceedings technical requirements and

limitations which have grown up around the term “conspiracy.” There are

some divergencies between the Anglo-American concept of a conspiracy and

that of either French, Soviet, or German jurisprudence. It was desired

that concrete cases be guided by the broader considerations inherent in

the nature of the problem I have outlined, rather than to be controlled

by refinements of any local law.

Now, except for procedural difficulties arising from their multitude,

there is no reason why every member of any Nazi organization accused

here could not have been indicted and convicted as a part of the

conspiracy under Article 6, even if the Charter had never mentioned

organizations at all. To become voluntarily affiliated was an act of

adherence to some common plan or purpose.

These organizations did not pretend to be merely social or cultural

groups; admittedly, the members were united for action. In the case of

several of the Nazi organizations, the fact of confederation was

evidenced by formal induction into membership, the taking of an oath,

the wearing of a distinctive uniform, the submission to a discipline.

That all members of each Nazi organization did combine under a common

plan to achieve some end by combined efforts is abundantly established.

The criteria for determining whether these ends were guilty ends are

obviously those which would test the legality of any combination or

conspiracy. Did it contemplate illegal methods or purpose illegal ends?

If so, the liability of each member of one of these Nazi organizations

for the acts of every other member is not essentially different from the

liability for conspiracy enforced in the courts of the United States

against businessmen who combine in violation of the anti-trust laws, or

other defendants accused under narcotic-drugs acts, sedition acts, or

other Federal penal enactments.

Among the principles every day enforced in courts of Great Britain and

the United States in dealing with conspiracy are these sweeping

principles:

No formal meeting or agreement is necessary. It is sufficient, although

one performs one part and other persons other parts, if there be concert

of action and working together understandingly with a common design to

accomplish a common purpose.

Secondly, one may be liable even though he may not have known who his

fellow conspirators were or just what part they were to take or what

acts they committed, and though he did not take personal part in them or

was absent when the criminal acts occurred.

Third, there may be liability for acts of fellow conspirators although

the particular acts were not intended or anticipated, if they were done

in execution of the common plan. One in effect makes a fellow

conspirator his agent with blanket authority to accomplish the ends of

the conspiracy.

Fourth, it is not necessary to liability that one be a member of a

conspiracy at the same time as other actors, or at the time of the

criminal acts. When one becomes a party to a conspiracy, he adopts and

ratifies what has gone before and remains responsible until he abandons

the conspiracy with notice to his fellow conspirators.

Now, those are sweeping principles, but no society has been able to do

without these defenses against the accumulation of power through

aggregations of individuals.

Members of criminal organizations or conspiracies who personally commit

crimes, of course, are individually punishable for those crimes exactly

as are those who commit the same offenses without organizational

backing. The very essence of the crime of conspiracy or membership in a

criminal association is liability for acts one did not personally

commit, but which his acts facilitated or abetted. The crime is to

combine with others and to participate in the unlawful common effort,

however innocent the personal acts of the participants, considered by

themselves.

The very innocent act of mailing a letter is enough to tie one into a

conspiracy if the purpose of the letter is to advance a criminal plan.

And we have multitudinous examples in the jurisprudence of the United

States where the mailing of a letter brought one not only within the

orbit of the definition of crime, but within Federal jurisdiction.

There are countless examples of this doctrine that innocent acts in the

performance of a common purpose render one liable for the criminal acts

of others performed to that same end.

This sweep of the law of conspiracy is an important consideration in

determining the criteria of guilt for organizations. Certainly the

vicarious liability imposed in consequence of voluntary membership,

formalized by oath, dedicated to a common organizational purpose and

submission to discipline and chain of command, cannot be less than that

vicarious liability which follows from informal co-operation with a

nebulous group, as is sufficient in case of a conspiracy.

This meets the suggestions that the Prosecution is required to prove

every member, or every part, fraction, or division of the membership to

be guilty of criminal acts. That suggestion ignores the conspiratorial

nature of the charge against organizations. Such an interpretation also

would reduce the Charter to an unworkable absurdity. To concentrate in

one International Tribunal inquiries requiring such detailed evidence as

to each member or as to each subsection would set a task not possible of

completion within the lives of living men.

It is easy to toss about such a plausible but superficial cliché as that

“one should be convicted for his activities and not for his membership.”

But this ignores the fact that membership in Nazi bodies was an

activity. It was not something passed out to a passive citizen like a

handbill. Even a nominal membership may aid and abet a movement greatly.

Does anyone believe that the picture of Hjalmar Schacht sitting in the

front row of the Nazi Party Congress, which you have seen, wearing the

insignia of the Nazi Party, was included in the propaganda film of the

Nazi Party merely for artistic effect? The great banker’s mere loan of

his name to this shady enterprise gave it a lift and a respectability in

the eyes of every hesitating German. There may be instances in which

membership did not aid and abet organizational ends and means, but

individual situations of that kind are for appraisal in the later

hearings and not by this Tribunal.

By and large, the use of organizational affiliation is a quick and

simple, but at the same time fairly accurate, outline of the contours of

a conspiracy to do what the organization actually did. It is the only

workable one at this stage of the Trial. It can work no injustice

because before any individual can be punished, he can submit the facts

of his own case to further and more detailed judicial scrutiny.

While the Charter does not so provide, we think that on ordinary legal

principles the burden of proof to justify a declaration of criminality

is, of course, upon the Prosecution. It is discharged, we think, when we

establish the following:

1. The organization or group in question must be some aggregation of

persons associated in identifiable relationship with a collective,

general purpose.

2. While the Charter does not so declare, we think it implied that

membership in such an organization must be generally voluntary. This

does not require proof that every member was a volunteer. Nor does it

mean that an organization is not to be considered voluntary if the

Defense proves that some minor fraction or small percentage of its

membership was compelled to join. The test is a commonsense one: Was the

organization on the whole one which persons were free to join or to stay

out of? Membership is not made involuntary by the fact that it was good

business or good politics to identify one’s self with the movement. Any

compulsion must be of the kind which the law normally recognizes, and

threats of political or economic retaliation would be of no consequence.

3. The aims of the organization must be criminal in that it was designed

to perform acts denounced as crimes in Article 6 of the Charter. No

other act would authorize conviction of an individual and no other act

would authorize conviction of the organization in connection with the

conviction of the individual.

4. The criminal aims or methods of the organization must have been of

such a character that its membership in general may properly be charged

with knowledge of them. This again is not specifically required by the

Charter. Of course, it is not incumbent on the Prosecution to establish

the individual knowledge of every member of the organization or to rebut

the possibility that some may have joined in ignorance of its true

character.

5. Some individual defendant must have been a member of the organization

and must be convicted of some act on the basis of which the organization

was declared to be criminal.

I shall now take up the subject of the issues, as we see it, which are

for trial before this Tribunal, and some discussion of those which seem

to us not to be for trial before this Tribunal.

Progress of this Trial will be expedited by a clear definition of the

issues to be tried. I have indicated what we consider to be proper

criteria of guilt. There are also subjects which we think are not

relevant before this Tribunal, some of which are mentioned in the

specific questions asked by the Tribunal.

Only a single ultimate issue is before this Tribunal for decision. That

is whether accused organizations properly may be characterized as

criminal ones or as innocent ones. Nothing is relevant here that does

not bear on a question that would be common to the case of every member.

Any matter that would be exculpating for some members but not for all

is, as we see it, irrelevant here.

We think it is not relevant to this proceeding at this stage that one or

many members were conscripted if in general the membership was

voluntary. It may be conceded that conscription is a good defense for an

individual charged with membership in a criminal organization, but an

organization can have criminal purpose and commit criminal acts even if

a portion of its membership consists of persons who were compelled to

join it. The issue of conscription is not pertinent to this proceeding,

but it is pertinent to the trials of individuals for membership in

organizations declared to be criminal.

Also, we think it is not relevant to this proceeding that one or more

members of the named organizations were ignorant of its criminal

purposes or methods if its purposes or methods were open or notorious.

An organization may have criminal purposes and commit criminal acts

although one or many of its members were without personal knowledge

thereof. If a person joined what he thought was a social club, but what

in fact turned out to be a gang of cutthroats and murderers, his lack of

knowledge would not exonerate the gang considered as a group, although

it might possibly be a factor in extenuation of a charge of criminality

brought against him for mere membership in the organization. Even then,

the test would be not what the man actually knew, but what, as a person

of common understanding he should have known.

It is not relevant to this proceeding that one or more members of the

named organizations were themselves innocent of unlawful acts. This

proposition is basic in the entire theory of the declaration of

organizational criminality. The purpose of declaring criminality of

organizations, as in every conspiracy charge, is punishment for aiding

crimes, although the precise perpetrators can never be found or

identified.

We know that the Gestapo and the SS, as organizations, were given

principal responsibility for the extermination of the Jewish people in

Europe, but beyond a few isolated instances, we can never establish

which members of the Gestapo or SS actually carried out the murders.

Most of them were concealed by the anonymity of the uniform, committed

their crimes, and passed on. Witnesses know that it was an SS man or a

Gestapo man, but to identify him is impossible. Any member guilty of

direct participation in such crimes, if we can find and identify him,

can be tried on the charge of having committed the specific crimes in

addition to the general charge of membership in a criminal organization.

Therefore, it is wholly immaterial that one or more members of the

organizations were themselves allegedly innocent of specific wrongdoing.

The purpose of this proceeding is not to reach instances of individual

criminal conduct, even in subsequent trials, and therefore such

considerations are irrelevant here.

Another question raised by the Tribunal is the period of time during

which the groups or organizations named in the Indictment are claimed by

the Prosecution to have been criminal. The Prosecution believes that

each organization should be declared criminal for the period stated in

the Indictment. We do not contend that the Tribunal is without power to

condition its declaration so as to cover a lesser period of time than

that set forth in the Indictment. The Indictment is specific as to each

organization. We think that the record at this time affords adequate

evidence to support the charge of criminality with respect to each of

the organizations during the full time set forth in the Indictment.

Another question raised by the Tribunal is whether any classes of

persons included within the accused groups or organizations should be

excluded from the declaration of criminality. It is, of course,

necessary that the Tribunal relate its declaration to some identifiable

group or organization. The Tribunal, however, is not expected or

required to be bound by formalities of organization. In framing the

Charter, the use was deliberately avoided of terms or concepts which

would involve this Trial in legal technicalities about juristic persons

or entities.

Systems of jurisprudence are not uniform in the refinements of these

fictions. The concept of the Charter, therefore, is a nontechnical one.

“Group” or “organization” should be given no artificial or sophistical

meaning. The word “group” was used in the Charter as a broader term,

implying a looser and less formal structure or relationship than is

implied in the term “organization.” The terms mean in the context of the

Charter what they mean in the ordinary speech of people. The test to

identify a group or organization is a natural and commonsense one.

It is important to bear in mind that while the Tribunal has, no doubt,

power to make its own definition of the groups it will declare criminal,

the precise composition and membership of groups and organizations is

not an issue for trial here. There is no Charter requirement and no

practical need for the Tribunal to define a group or organization with

such particularity that its precise composition or membership is thereby

determined.

The creation of a mechanism for later trial of such issues was a

recognition that the declaration of this Tribunal is not decisive of

such questions and is likely to be so general as to comprehend persons

who, on more detailed inquiry, will prove to be outside of it.

Any effort by this Tribunal to try questions of exculpation of

individuals, be they few or many, would unduly protract the Trial,

transgress the limitations of the Charter, and quite likely do some

mischief by attempting to adjudicate precise boundaries on evidence

which is not directed to that purpose.

THE PRESIDENT: Would this be a convenient time for you to break off for

a few moments?

MR. JUSTICE JACKSON: Yes, Sir.

[_A recess was taken._]

MR. JUSTICE JACKSON: The Prosecution stands upon the language of the

Indictment and contends that each group or organization should be

declared criminal as an entity and that no inquiry should be entered

upon and no evidence entertained as to the exculpation of any class or

classes of persons within such descriptions. Practical reasons of

conserving the Tribunal’s time combine with practical considerations for

defendants. A single trial held in one city to deal with the question of

excluding thousands of defendants living all over Germany could not be

expected to do justice to each member unless it was expected to endure

indefinitely. Provision for later local trials of individual

relationships protects the rights of members better than possibly can be

done in proceedings before this Tribunal.

With respect to the Gestapo, the United States and, I believe all of my

colleagues consent to exclude persons employed in purely clerical,

stenographic, janitorial, or similar unofficial routine tasks. As to the

Nazi Leadership Corps we abide by the position taken at the time of

submission of the evidence, that the following should be included: The

Führer, the Reichsleiter, main departments and office holders, the

Gauleiter and their staff officers, the Kreisleiter and their staff

officers, the Ortsgruppenleiter, the Zellenleiter, and the Blockleiter,

but not members of the staff of the last three officials.

As regards the SA, it is considered advisable that the declaration

expressly exclude: (1) Wearers of the SA Sports Badge; (2) the

SA-controlled home-guard units, which were not, as we view it on the

evidence, strictly a part of the SA, and there also be excluded the

National Socialist League for Disabled Veterans and the SA Reserve, so

as to include only the active parts of that organization.

The Prosecution does not feel that there is evidence of the severability

of any class or classes of persons within the organizations accused

which would justify any further concessions, and that no other part of

the named groups should be excluded. In this connection, we would again

stress the principles of conspiracy. The fact that a section of an

organization itself committed no criminal act, or may have been occupied

in technical or administrative functions, does not relieve that section

of criminal responsibility if its activities contributed to the over-all

accomplishment of the criminal enterprise. I should like to discuss the

question of the further steps to be taken procedurally before this

Tribunal.

Over 45,000 persons have joined in communications to the Tribunal asking

to be heard in connection with the accusations against organizations.

The volume of these applications has caused apprehension as to further

proceedings. No doubt there are difficulties yet to be overcome, but my

study indicates that the difficulties are greatly exaggerated.

The Tribunal is vested with wide discretion as to whether it will

entertain an application to be heard. The Prosecution would be anxious,

of course, to have every application granted that is necessary, not only

to do justice, but to avoid appearance of doing anything less than

justice. And we do not consider that expediting this Trial is so

important as affording a fair opportunity to present all really

pertinent facts.

Analysis of the conditions which have brought about this flood of

applications indicated that their significance is not proportionate to

their numbers. The Tribunal sent out 200,000 printed notices of the

right to appear before it and defend. They were sent to Allied

prisoner-of-war and internment camps. The notice was published in all

German language papers and was repeatedly broadcast over the radio.

Investigation shows that the notice was posted in all barracks of the

camps, and it also shows that in many camps it was read to the

prisoners, in addition. The 45,000 persons who responded with

applications to be heard came principally from about 15 prisoner-of-war

and internment camps in British or United States control. Those received

included an approximate 12,000 from Dachau, 10,000 from Langwasser,

7,500 from Auerbach, 4,000 from Staumühle, 2,500 from Garmisch and

several hundred from each of the others.

We have made some investigation of these applications, as well as of the

sending out of the notices, and we would be glad to place any

information that we have at the disposal of the Tribunal.

An investigation was made of the Auerbach Camp in the United States

zone, principally to determine the reason for these applications and the

method by which they came. That investigation was conducted by

Lieutenant Colonel Smith Brookhart, Captain Drexel Sprecher, and Captain

Krieger, all of whom are known to this Tribunal.

The Auerbach camp is for prisoners of war, predominantly SS members. Its

prisoners number 16,964 enlisted men and 923 officers. The notice of the

International Military Tribunal was posted in each of the barracks and

was read to all inmates. All applications to the Tribunal were forwarded

without censorship of any kind. Applications to defend were made by

7,500 SS members.

Investigation indicates that these were filed in direct response to the

notice, and that no action was directed or inspired from any other

source within or without the camp. All who were interrogated professed

that they had no knowledge of any SS crimes or of SS criminal purpose,

but they expressed interest only in their individual fate, rather than

any concern to defend the organization.

Our investigators report no indication that they had any additional

evidence or information to submit on the general question of the

criminality of the SS as an organization. They seemed to think it was

necessary to protect themselves to make the application here.

Turning then to examination of the applications, these, on their face,

indicate that most of the members do not profess to have evidence on the

general issue triable here. They assert almost without exception that

the writer has neither committed nor witnessed nor known of the crimes

charged against the organization. On a proper definition of the issues

such an application is insufficient, on its face, to warrant a personal

intervention.

A careful examination of the notice to which these applications respond

will indicate, I believe, that the notice contains no word which would

inform a member, particularly if he were a layman, of the narrowness of

the issues which are to be considered here, or that he will have a later

opportunity, if and when prosecuted, to present personal defenses. On

the other hand the notice, it seems to me, creates the impression,

particularly to a layman, that every member may be convicted and

punished by this Tribunal and that his only chance to be heard is here.

I think a careful examination of these notices will bear out that

impression and a careful examination of the applications will show that

they are in response to that impression.

Now, among lawyers there is usually a difference of opinion as to how

best to proceed and this case presents no exception to that; there are

different ideas. But I shall advance certain views as to how we should

proceed from here to obtain a fair and proper adjudication of these

questions. In view of these facts we suggest a consideration of the

following program for completion of this Trial as to organizations:

1. That the Tribunal formulate and express in an order the scope of the

issues and the limitations on the issues to be heard by it.

2. That a notice adequately informing members as to the limitation of

the issues and the opportunity later to be individually tried be sent to

all applicants and published in the same manner as the original notice.

3. That a panel of masters be appointed, as authorized in Article 17(e)

of the Charter, to examine applications and to report those that are

insufficient on their own statements and to go to the camps and

supervise the taking of any relevant evidence. Defense Counsel and

Prosecution representatives should, of course, attend and be heard

before the masters. The masters should reduce any evidence to deposition

form and report the whole to this Tribunal, to be introduced as a part

of its record.

4. The representative principle may also be employed to simplify the

task. Members of particular organizations in particular camps might well

be invited to choose one or more to represent them in presenting

evidence.

It may not be untimely to remind the Tribunal and the Defense Counsel

that the Prosecution has omitted from evidence many relevant documents

which show repetition of crimes by these organizations in order to save

time by avoiding cumulative evidence. It is not too much to expect that

cumulative evidence of a negative character will likewise be limited.

Some concern has been expressed as to the number of persons who might be

affected by the declarations of criminality which we have asked.

Some people seem more susceptible to the shock of a million punishments

than to shock from 5 million murders. At most the number of punishments

will never catch up with the number of crimes. However, it is impossible

to state, even with approximate accuracy, the number of persons who

might be affected by the declaration of criminality which we have asked.

Figures from the German sources seriously exaggerate the number, because

they do not take account of heavy casualties in the latter part of the

war, and make no allowance for duplication of membership which was

large. For example, the evidence is to the effect that 75 percent of the

Gestapo men also were members of the SS. We know that the United States

forces have a roughly estimated 130,000 detained persons who appear to

be members of accused organizations. I have no figure from other Allied

forces. But how many of these actually would be prosecuted, instead of

being dealt with under the denazification program, no one can foretell.

Whatever the number, of one thing we may be sure: It is so large that a

thorough inquiry by this Tribunal into each case would prolong its

session beyond endurance. All questions as to whether individuals or

subgroups of accused organizations should be excepted from the

declaration of criminality should be left for local courts, located near

the home of the accused and near the source of evidence. The courts can

work in one or at most in two languages, instead of four, and can hear

evidence which both parties direct to the specific issues.

This is not the time to review the evidence against each particular

organization which, we take it, should be reserved for summation after

the evidence is all presented. But it is timely to say that the

selection of the six organizations named in the Indictment was not a

matter of chance. The chief reasons they were chosen are these:

Collectively they were the ultimate repositories of all power in the

Nazi regime; they were not only the most powerful, but the most vicious

organizations in the regime; and they were organizations in which

membership was generally voluntary.

The Nazi Leadership Corps consisted of the directors and principal

executors of the Nazi Party, and the Nazi Party was the force lying

behind and dominating the whole German State. The Reich Cabinet was the

facade through which the Nazi Party translated its will into

legislative, administrative, and executive acts. The two pillars on

which the security of the regime rested were the Armed Forces, directed

and controlled by the General Staff and High Command, and the police

forces—the Gestapo, the SA, the SD, and the SS. These organizations

exemplify all the evil forces of the Nazi regime.

These organizations were also selected because, while representative,

they were not so large or extensive as to make it probable that

innocent, passive, or indifferent Germans might be caught up in the same

net with the guilty. State officialdom is represented, but not all the

administrative officials or department heads or civil servants; only the

Reich Cabinet, the very heart of Nazidom within the government, is

named. The Armed Forces are accused, but not the average soldier or

officer, no matter how high-ranking. Only the top policy makers—the

General Staff and the High Command—are named. The police forces are

accused—but not every policeman, not the ordinary police which

performed only the normal police functions. Only the most terroristic

and repressive police elements—the Gestapo and SD—are named. The Nazi

Party is accused—but not every Nazi voter, not even every member, only

the leaders. And not even every Party official or worker is included;

only “the bearers of sovereignty,” in the metaphysical jargon of the

Party, who were the actual commanding officers and their staff officers

on the highest levels.

I think it is important that we observe, in reference to the Nazi Party,

just what it is that we are doing here and compare it with the

denazification program in effect without any declaration of criminality,

in order to see in its true perspective the indictment which we bring

against the Nazi Party.

Some charts have been prepared. This is a mere graphic representation of

the proportions of persons that we have accused, and which we ask this

Tribunal to declare as constituting criminal organizations.

In the first column are the 79 million German citizens. We make no

accusation against the citizenry of Germany. The next is the 48 million

voters, who at one time voted to keep the Nazi Party in power. They

voted in response to the referendum. We make no charge against those who

supported the Nazi Party, although in some aspects of the denazification

program the supporters are included. Then come the 5 million Nazi

members, persons who definitely joined the Nazi Party by an act of

affiliation, by an oath of fealty. But we do not attempt to reach that

entire 5 million persons, although I have no hesitation in saying that

there would be good grounds for doing so; but as a mere matter of

practicality of this situation it is not possible to reach all of those

who are technically and perhaps morally well within the confines of this

conspiracy. So the voters are disregarded, the 48 million, the 5 million

members are disregarded, and the first that we propose to reach are the

Nazi leaders, starting with Blockleiter, which are shown in the last

small block, and piled together, amounting to the fourth block on the

diagram.

It is true that we start with the local block leader, but he had

responsibilities—responsibilities for herding into the fold his 50

households, responsibilities for spying upon them and reporting their

activities; responsibilities, as this evidence shows, for disciplining

them and for leading them. No political movement can function in the

drawing rooms and offices. It has to reach the masses of the people and

these block leaders were the essential elements in making this program

effective among the masses of the people and in terrorizing them into

submission.

I submit that on this diagram the accusation which we bring here is a

moderate one reaching only persons of admitted leadership

responsibilities and not trying to reach people who may have been

beguiled into following in an unorganized fashion.

We have also accused the formations, Party formations, such as the SA

and the SS. These were the strong arms of the Party. These were the

formations that the Blockleiter was authorized to call in to help him if

he needed to discipline somebody in his block of 50 houses.

But we do not accuse every one of the formations of the Party, nor do we

accuse any of the 20 or more supervised or affiliated Party groups, Nazi

organizations in which membership was compulsory, either legally or in

practice, such as the Hitler Youth and the Student League. We do not

accuse the Nazi professional organizations, although they were Nazi

dominated, like the civil servants’ organization, the teachers’

organization, and the National Socialist lawyers’ organization, although

I should show them as little charity as any group. We do not accuse any

Nazi organizations which have some legitimate purpose, like welfare

organizations. Only two of these Party formations are named, the SA and

the SS, the oldest of the Nazi organizations, groups which had no

purpose other than carrying out the Nazi schemes, and which actively

participated in every crime denounced by the Charter and furnished the

manpower for most of the crimes which we have proved.

In administering preventive justice with a view to forestalling

repetition of the Crimes against Peace, Crimes against Humanity, and War

Crimes, it would be a greater catastrophe to acquit these organizations

than it would be to acquit the entire 22 individual defendants in the

box. These defendants’ power for harm is past. They are discredited men.

That of these organizations goes on. If these organizations are

exonerated here, the German people will infer that they did no wrong,

and they will easily be regimented in reconstituted organizations under

new names, behind the same program.

In administering retributive justice it would be possible to exonerate

these organizations only by concluding that no crimes have been

committed by the Nazi regime. For these organizations’ sponsorship of

every Nazi purpose and their confederation to execute every measure to

attain these ends is beyond denial. A failure to condemn these

organizations under the terms of the Charter can only mean that such

Nazi ends and means cannot be considered criminal and that the Charter

of the Tribunal declaring them so is a nullity.

I think my colleagues, who have somewhat different aspects of the case

to deal with, would like to be heard on this subject.

THE PRESIDENT: Mr. Justice Jackson and Sir David Maxwell-Fyfe, the

Tribunal thinks the most convenient course would be to hear argument on

behalf of all the chief prosecutors and then to hear argument on behalf

of such of the defendants’ counsel as wish to be heard, and after that

the Tribunal will probably wish to ask some questions of the chief

prosecutors.

MR. JUSTICE JACKSON: That will be very agreeable to us.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Mr. Justice Jackson

has dealt with the general principles under which the organizations

named in the Charter should, in the view of the Prosecution, be dealt

with. It is not my purpose to repeat or even to underline his arguments.

My endeavor is to comply with Paragraph 4 of the statement of the

Tribunal made on the 14th of January of this year. This involves:

(a) Summarizing, in respect of each named organization, the elements

which, in our opinion, justify the charge of their being criminal

organizations. For convenience I shall refer to these as the elements of

criminality.

(b) Indicating what acts on the part of individual defendants in the

sense used in Article 9 of the Charter justified declaring the groups or

organizations of which they are members to be criminal organizations.

Again for convenience, I shall refer to such defendants in the wording

of the Charter, as connected defendants.

(c) I shall submit that what I have put forward in writing under (a) and

(b) will form the necessary summary of proposed findings of fact under

the Tribunal’s third point.

May I say one word about the mechanics of the position? I thought that

it would be convenient if the Tribunal and the Defense Counsel had

copies of these suggestions before I address the Tribunal. In pursuance

of this, copies have been given to the members of the Tribunal, of

course to the court interpreters, and copies in German have been

provided for counsel for the organizations and also for counsel for each

of the individual defendants.

For the convenience of the Tribunal and of counsel, I have circulated

two addenda, which contain further references to the transcript and

documents on a number of points in the original appendices. These

addenda are compiled under the numbers of paragraphs and, although they

are in English, should be readily usable by Counsel for the Defense. The

result is that there is the summary in Appendices (A) and (B), which I

put in, and full reference in all the points in the summary to the

transcript and in some cases to documents.

It is my intention not to read in full all the matters contained in my

Appendix (A) and Appendix (B) but to indicate how they fit in with the

conception of the Prosecution on this aspect of the case. I shall, of

course, be only too ready to read any portions which may be convenient

to the Tribunal.

I think it would be best to start from the essential _probanda_ which

Mr. Justice Jackson has indicated, and perhaps the Tribunal will bear

with me while I repeat his five points:

1. The organization or group in question must be some aggregation of

persons, (a) in some identifiable relationship, (b) with a collective

general purpose. That was Mr. Justice Jackson’s first test.

2. Membership in such organization must be generally voluntary, although

a minor proportion of involuntary members will not affect the position.

3. The aims of the organizations must be criminal in the sense that its

objects included the performance of acts denounced as crimes by Article

6 of the Charter.

4. The criminal aims or methods of the organization must have been of

such a character that a reasonable man would have constructive knowledge

of the organization which he was joining; that is, that he ought to have

known what type of organization he was joining.

5. Some individual defendants, at least one, must have been a member of

the organization and must be convicted of some act on the basis of which

a declaration of the criminality of the organization can be made.

I do not think that I can avoid applying these tests to each of the

organizations, but I conceive that this can be done with brevity, and I

therefore propose to deal with the organizations _seriatim_.

I take first the Reichsregierung. Under Appendix B of the Indictment

this group is defined as consisting of three classes:

1. Members of the ordinary cabinet after the 30th of January 1933. The

term “ordinary cabinet” is in turn used as meaning: (a) Reich ministers

that is, heads of departments; (b) Reich ministers without portfolio;

(c) State ministers acting as Reich ministers, (d) other officials

entitled to take part in meetings of the cabinet.

The second division is members of the Council of Ministers for the

Defense of the Reich.

The third division, members of the Secret Cabinet Council.

It is submitted that, on the evidence placed before the Tribunal, there

is no doubt that the first of Mr. Justice Jackson’s points, Point 1, is

complied with in that there is an identifiable relationship with a

collective general purpose, and that this organization is generally

voluntary, within Point 2.

The aims of the organization are set out in Paragraph 4 of Section A of

my Appendix A and the broad submission of the Prosecution is shown in

Paragraph 2. Perhaps, as that is short, I might be allowed to read it:

“Owing to their legislative powers and functions the members of

the Reichsregierung gave statutory effect to the policy of the

Nazi conspirators and collectively formed a combination of

persons carrying out the executive and administrative decisions

of the Nazi conspirators.”

The Prosecution apply that general submission to the crimes constituted

by Article 6 of the Charter in Paragraphs 5, 6, 7, and 8 of that

appendix. If the Tribunal would like me to deal further with these

paragraphs I should be pleased to read and comment on any that are

desired.

When it is remembered that the Reichsregierung possessed policymaking,

legislative, administrative, and executive powers and functions, and

that many of its members held at the same time important positions in

the Party and in governmental activities outside the cabinet, enormous

political power was concentrated in this group. As I said, the

Reichsregierung implemented and gave statutory effect to the program of

the conspirators.

If the Tribunal will be good enough to turn to my Appendix B they will

see that 17 of the 21 defendants before the Court were members of the

Reichsregierung. The Prosecution have submitted an enormous body of

evidence against these 17 defendants, and they now submit that it is

sufficient to say that these 17 defendants should be convicted under

each count of the Indictment, and therefore under each portion of

Article 6 of the Charter, and that they form the connected defendants

with the Reichsregierung, under Mr. Justice Jackson’s Point Number 5.

The acts which I have mentioned and which are set out in Paragraph 4 of

my Appendix A and the other paragraphs are of such a character that no

one in a ministerial capacity could fail to have constructive knowledge

of their nature and intent.

I now pass to the Leadership Corps of the Nazi Party. Mr. Justice

Jackson has indicated that the conspirators required wide instruments of

support. Hitler boasted of the complete domination of the Reich and of

its institutions and of its organizations, internally and externally, by

the National Socialist Party.

In the Nazi Party, based on the Führerprinzip, its policies and

operations were determined not by the membership as a whole but by the

corps of bearers of sovereignty and their staff. These leaders were all

political deputies, obliged to support and carry out the doctrines of

the Party. At every level regular and frequent conferences were held to

discuss questions of policy and working measures. The leaders held the

Party together, but they also kept the entire populace firmly in the

grip of the conspirators through the control of the descending hierarchy

of leaders.

The Prosecution submit that all these leaders are within the

organization which they claim to be criminal, and as Mr. Justice Jackson

pointed out the staffs of the Reichsleiter, Gauleiter, and Kreisleiter,

which are set out in the volumes of the _National Socialist Organization

Yearbook_ as being in these positions.

The Tribunal will note that we have omitted the staffs of the more

junior Hoheitsträger, as Mr. Justice Jackson has pointed out. On that

the Prosecution again says that there is no doubt that Points 1 and 2 of

Mr. Justice Jackson’s criteria are complied with, and they indicate in

Paragraphs 1, 2, 3, and 4 of Section B of my Appendix A the elements of

criminality; they indicate in my Appendix B the defendants who are

involved; and in a latter portion of Appendix B they submit that from

the position of these defendants as members of the Leadership Corps and

in the Government and the Nazi Party, and further, from the close

interconnection between the Government of the Reich and the Party, it is

clear that the Leadership Corps is a criminal organization connected

with all the crimes charged against all the defendants in the

Indictment, including those who were in the Leadership Corps and

elaborated before the Tribunal in the individual presentations.

The Nazi Party is the core of the conspiracy and criminality alleged,

and the defendants are the core of the Nazi Party. Again the Prosecution

say that no one living in Germany and taking part in the management,

which in this case means literally the ordering of the Nazi Party, could

fail to have constructive knowledge of the intentions of its leaders and

the methods of carrying these out. This inner circle is in a different

position from even the best-informed opinion outside Germany.

I now pass to the SS, including the SD. The Prosecution respectfully

remind the Tribunal of the statements regarding the composition of the

SS and its history, set out shortly in Appendix B of the Indictment, on

Page 36 (Volume I, Page 81) of the English text. The Prosecution stands

by these statements, which it submits are clear. I do not intend to read

them at the present moment.

The Tribunal has heard in the case regarding the SS—the transcript

Pages 1787 to 1889 (Volume IV, Pages 161-230)—and the case regarding

concentration camps—Pages 1399 to 1432 (Volume III, Pages 496-518)—and

also the evidence as to the Defendant Kaltenbrunner, of which the

reference is given in the addendum. They have also heard in the cases of

the French and Soviet delegations additional mountains of evidence with

regard to the SS. It is submitted that there is no difficulty on the

first three of Mr. Justice Jackson’s points, and that the criminality of

the SS has been proved several times over.

On the fourth point I venture to submit the submission in Paragraph 4 of

Section C of my Appendix A, that the crimes of the SS were committed,

first, on such a vast scale, and, secondly, over such a vast area that

the criminal aims and methods of the SS, which have staggered humanity

since this Trial opened, must have been known to its members. It was

difficult to drive from one city of Germany to another without passing

near to a concentration camp, and every concentration camp contained its

SS crimes. In my Appendix B the Tribunal will find the members of the SS

who are defendants set out, and, in the second part, a summary of the

crimes of the Defendant Kaltenbrunner. The Prosecution gives to him a

sinister particularity, while relying also on the crimes of the other

defendants who were members.

DR. OTTO PANNENBECKER (Counsel for Defendant Frick): May I point out

that in the appendix the Defendant Frick has apparently been included by

mistake; among the offices held by the Defendant Frick this is not

listed as one of them.

THE PRESIDENT: What do you mean? Do you mean not a member of the SS?

DR. PANNENBECKER: The appendix says that Frick was a member of the SS.

This is not the case, and he has also made a statement to this effect in

his affidavit.

DR. SEIDL: In the appendix just read out by the prosecutor the Defendant

Frank too is included as a member of the SS. Already earlier in the

Trial the American prosecutor submitted Document 2979-PS as Exhibit

Number USA-7. This document shows that at no time was Frank a member of

the SS or, as is asserted in the Indictment, an SS general.