Furthermore I should like to point out to the Tribunal that several

months ago, when the Indictment was lodged against the SS as a criminal

organization, the name of the Defendant Frank was not mentioned. May I

therefore take it that in the drawing up of this appendix a mistake has

been made?

DR. THOMA: I should like to make the same statement as that made by my

colleague Doctor Seidl on behalf of the Defendant Rosenberg. In Appendix

A, which lists the indicted elements, Rosenberg is shown as a member of

the SA. He was never a member of the SA, and he has already made a

statement to this effect in the course of an interrogation.

SIR DAVID MAXWELL-FYFE: The defendants will have the opportunity of

disproving these allegations, which are all contained in the Indictment;

but in view of what has been said, I shall personally check the matter

myself.

I proceed to deal with the Gestapo. Again, the Tribunal will find the

construction and history of the Gestapo set out in Appendix B of the

Indictment, and the criminality alleged is set out in Paragraphs 1, 2,

and 3 of Section D of my appendix. The second addendum, the Tribunal may

care to note, gives the most detailed references to each of these

alleged acts of criminality. And the Prosecution submit that from these

points which are mentioned it is clear that the first four of Mr.

Justice Jackson’s points are complied with. The provisions of Articles 7

and 8 of the Charter, in the submission of the Prosecution, make it

impossible for the Defense to rely on the official background of the

Gestapo, and therefore, as I say, we submit that this clearly comes

within the first four of Mr. Justice Jackson’s points. If the Tribunal

will refer to my Appendix B they will see that the Defendants Göring,

Frick, and Kaltenbrunner are alleged to be members, and in the latter

part of that appendix we allege, as is the fact, that the crimes of

these defendants were committed in their capacities as responsible

chiefs of this organization.

Then we come to the SA. I again refer to Paragraphs 1 and 2 of Section E

of my Appendix A, and I ask the Tribunal to note that, apart from the

correct statement of its phases and periods of activity, each of the

elements of criminality contained references to the transcript where

these matters are proved. I remind the Tribunal of Mr. Justice Jackson’s

statement, which shows that the Prosecution have omitted all connected

bodies—even including those who had only been members of the

reserve—about which there can be any argument, even a sentimental

argument, as to their full connection.

It might be convenient if I reminded the Tribunal of these sections.

THE PRESIDENT: We will adjourn now.

[_The Tribunal recessed until 1400 hours._]

_Afternoon Session_

SIR DAVID MAXWELL-FYFE: If the Tribunal please, before the Tribunal

adjourned, I was about to mention again the bodies on the fringe of the

SA, which the Prosecution did not seek to have included in the

organizations:

First, wearers of the SA Sports Badge. The Tribunal may remember that

Colonel Storey explained that they were not strictly members. He wanted

to have that point quite clear. Secondly, SA Wehrmannschaften, who were

internal defense or home-guard units, controlled by the SA but not

members of the SA. Thirdly, SA members who were never in any part of the

SA other than the reserve. Fourthly, the NSKOV, the National Socialist

League for Disabled Veterans, who were apparently incorporated in the

SA; but from the names that have been given—and the membership—we do

not ask for their inclusion.

In Appendix B the Tribunal will find the eight defendants alleged to be

connected with the SA, and it is alleged by the Prosecution that the

connection of the SA with the conspiracy was so intimate that all the

acts of the Defendant Göring would justify the declaration asked for.

I now pass to the sixth and last group or organization, the General

Staff and High Command of the German Armed Forces. As in this case the

Prosecution has drawn an arbitrary line, I may perhaps be allowed to

recall briefly its constitution.

If the Tribunal will be good enough to look at Appendix B of the

Indictment, under this heading, Page 37 of the English text (Volume I,

Page 84), they will see that the first nine positions enumerated are

special command or chief-of-staff positions. There were 22 holders of

these positions between February 1938 and May 1945, of whom 18 are

living. The 10th position, of Oberbefehlshaber, includes 110 individual

officers who held it. The whole group varied from a membership of 20 at

the beginning of the war to about 50 in 1944 or 1945—that is, at any

one time.

I remind the Tribunal, however, that the conjoining of these positions

is not artificial in reality, because on Page 2115 (Volume IV, Page 399)

and the following pages of Colonel Telford Taylor’s presentation—and I

refer especially to Pages 2125 and 2126 (Volume IV, Pages 407, 408)—it

will be seen how the holders of the positions enumerated met in fact and

in the flesh. This, in our submission, clearly comes within the

interpretation of “group” in the Charter which, as Mr. Justice Jackson

pointed out, has a wider connotation than “organization”; and we submit

that you cannot hold men in the top command against their will. It would

be impossible for them to carry on such work on such a condition.

Under Section F of my Appendix A, read with the first addendum, there

will be found not only the references in the transcript but the

references to the captured documents which prove, out of the mouths of

the members of this group, the criminality alleged against them under

each part of Article 6 of the Charter. These documents also show their

actual knowledge and therefore, _a priori_, their constructive knowledge

of the nature of the act.

In my Appendix B the five defendants involved are set out; and in the

latter part of that appendix the connection of the group, and especially

of the Defendants Keitel and Jodl, is emphasized. It is submitted that

these facts prevent any difficulty being encountered with regard to this

group on any of the five criteria which we say should guide the

Tribunal.

Finally, may I repeat that, in our respectful submission, the facts

contained in Appendices A and B, which are before the Tribunal in

writing, clearly indicate the findings of fact for which the Prosecution

ask.

My friend, M. Champetier de Ribes, will address the Tribunal.

M. CHAMPETIER DE RIBES: May it please the Tribunal, Mr. President and

Gentlemen, I shall be careful not to add anything to the very complete

statements of Mr. Justice Jackson and Sir David Maxwell-Fyfe.

In agreement with my fellow prosecutors, I should like respectfully to

draw the Tribunal’s attention only to two clauses of French domestic law

which deal with questions comparable to those which we are considering

today—and in connection with which I believe the French legislature has

had to solve some of the problems with which the Tribunal is

concerned—and especially to reply to the question put by the Tribunal,

namely, the definition of the criminal organizations.

I shall merely mention Article 265 of the French Penal Code which lays

down the general principle of the association of criminals by enacting

that:

“Any organized association, whatever its structure or the number

of its members, any understanding made with the object of

preparing or committing crimes against persons or against

property, constitutes a crime against public peace.”

But I should like to draw the attention of the Tribunal to this fact,

that in the course of the last few years France has had occasion to

apply this general principle to organizations which greatly resemble

those which we are asking you to declare criminal.

It is known indeed, Gentlemen, that Nazism is a contagious disease, the

ravages of which threaten to go beyond the borders of the countries

which it has definitely contaminated. Thus, during the years 1934 to

1936 diverse groups had been formed in France which, following the

example of their German and Italian models, were organized with the

intention of substituting themselves for the legal government in order

to impose in the country what they called “order” but which was in

reality only disorder.

The French Republic in 1936 did what the Weimar Republic ought to have

done. The law of 10 January 1936, promulgated on 12 January in the

_Official Gazette_, which I submit to the Tribunal, and a translation of

which was given to the Defense, decreed the dissolution of these groups

and enacted severe penalties against their members. With the Tribunal’s

permission, I shall read the first two clauses of this law:

“Article I. By decree of the President of the Republic in

session with the Cabinet all associations or _de facto_ groups

shall be dissolved which:

“1. Might provoke armed demonstrations in public thoroughfares;

“2. Or which, with the exception of societies for military

preparation sanctioned by the Government and societies for

physical education and sport, might by their structure and their

military organization have the character of a fighting group or

a private militia;

“3. Or which might aim at jeopardizing the integrity of the

national territory or at attempting to alter by force the

republican form of government.

“Article II. Any person who has taken part in the maintenance or

the reconstitution, direct or indirect, of the association or

group as defined in Article I, will be punished by a term of 6

months’ to 2 years’ imprisonment and a fine of 16 to 5,000

francs.”

The Tribunal will observe, in the first place, that by imposing severe

penalties on members of these associations for the mere fact of having

taken part “in the maintenance or the reconstitution, direct or

indirect, of the association,” the law of 10 January 1936 has recognized

and proclaimed the criminal character of the association.

The Tribunal will observe, in the second place, that neither the Penal

Code nor the law of 10 January 1936 is concerned with giving an exact

definition of the association nor with the question as to whether the

incriminated association constitutes a moral entity or a legal entity

having a legal existence. Article 265 of the Penal Code includes in its

condemnation not only any association, which means a legal entity, but

also condemns any agreement entered into with the object of preparing or

committing crimes. And the law of 10 January also mentions any

association, or any _de facto_ group. Thus the law of 10 January in the

same way as Article 265 of the Penal Code, speaking of agreements

entered into or _de facto_ groups, does not seek to define criminal

organizations by law and refers to the commonly accepted meaning and

implication of the words “group” or “organization” as we today ask you

to define them.

In the same way, after the liberation of our country, the French

Government concerned itself with pursuing and punishing bad citizens

who, even without offending against an existing penal statute, had been

guilty of definite antinational activity; and issued the decree of 26

August 1944, promulgated in the _Official Gazette_ of 28 August. This

decree, after having given a very general definition of the offense,

defined its extent by enumerating the essential facts which it

comprises.

Thus, Article I of the decree of 26 August 1944 states that the crime of

national unworthiness is constituted by the fact of having participated

in a collaborationist organization of any kind, and more especially one

of the following: le Service d’Ordre Legionnaire (Legion of Order), la

Milice (Militia), the group called “Collaboration,” la Phalange

Africaine (African Phalanx), and so on.

The decree of 26 August 1944 is much less concerned with defining the

punishable offense than with enumerating the criminal organizations to

which the fact of having adhered voluntarily constitutes the crime of

national unworthiness; and whether these organizations or these groups

are legally constituted organizations or simply agreements entered into,

as mentioned in Article 265 of the Penal Code, or merely _de facto_

groups, as stated in the law of 1936, the decree does not define, it

enumerates, the organizations which are considered to be criminal. That

is what we are asking you to do with respect to the German organizations

mentioned in the Indictment.

We are not asking you to condemn without having heard these men who, on

the contrary, will be able to put forward their personal means of

defense before a competent tribunal. We are asking you only to declare

criminal, as was allowed by the French laws of 1936 and 1944, _de facto_

groups without which it would have been impossible for one man in a few

years to cause a great civilized nation to sink to the lowest depths of

barbarity, the more hateful because it was scientific. It is the shame

of our time that the mastery of technique should have placed new methods

at the disposal of ancient barbarity, so true is it that technical

progress is of no avail unless accompanied by moral progress.

Your sentence will signify for all nations in the world, and for the

good of Germany herself, that above human liberties there exists a moral

law which imposes itself upon nations just as well as upon individuals

whether they be isolated or in groups and that it is criminal to violate

that moral law.

GEN. RUDENKO: Your Honors, let me tell you first of all that I accept

the principle which has been expressed by my respected colleagues

Justice Jackson and Sir David Maxwell-Fyfe, the principle with regard to

the criminality of the organizations. It seems to me that to clarify

this question it is necessary to distinguish clearly two interwoven

problems: First, the problem of the material law, just what

organizations and what individual members or groups of individual

members can be considered criminal; and also the problem of objective

law, what evidence, what documents, what witnesses, and in what order

these can be presented to agree, to declare, or to deny the criminality

of this or that organization.

First of all, as to the question of material law, it is necessary to

emphasize that the question of the criminal responsibility of an

organization does not stand before the Tribunal and never did; neither

does the question of the individual responsibility of the various

members of an organization, except those who are among the defendants

today or the various groups of these organizations, stand before the

Tribunal. The Charter of the Tribunal provides as follows: According to

Article 9, the examination or the trial of any individual member of this

or that group or of any organization is within the jurisdiction of the

Tribunal. It is within the jurisdiction of the Tribunal to declare this

or that organization criminal if one of the defendants belongs to the

organization.

Thus, we speak here about declaring an organization criminal, and the

Charter definitely provides the legal consequences of declaring an

organization criminal. As the Tribunal declares this or that group or

organization criminal, then the competent national authorities of the

signatory powers have a right to bring to trial before the national

military tribunals and occupational tribunals members of organizations.

In this case the criminal nature of the organizations is considered

clear and cannot be contradicted. (Article 10 of the Charter.)

Consequently the Charter provides two legal results of declaring an

organization criminal: First, the right, but not the obligation, of the

various national tribunals to bring to trial members or organizations

which the Tribunal declared criminal; and second, the obligation of the

national tribunals to consider an organization criminal if such an

organization was so declared by the International Military Tribunal.

In such a manner, the result of declaring an organization criminal by

the International Military Tribunal does not automatically mean that all

members of the organization will also be declared criminal by the

national tribunals; neither does it mean that without exception all

members of such an organization must be brought to trial. The question

of individual guilt and of individual responsibility of the separate

members of the criminal organizations is wholly, and without exception,

within the jurisdiction of the national tribunal.

As has already been pointed out, in Article 10 of the Charter, the

Tribunal limits the jurisdiction of the national tribunal in just one

way. The national tribunal cannot deny or cannot argue the criminality

of any organizations which have already been declared criminal.

My colleague, Justice Jackson, has already tendered valuable information

about the legal codes of the respective countries concerning the

question of responsibility. Under English-American law, French law, and

also the Soviet legal code, it is provided that membership in an

organization which has criminal aims makes an individual liable. There

are two legal decrees on the subject—in U.S.S.R. penal code, Articles

58-11 and 59-3. These laws provide for the responsibility of members of

criminal organizations. They are considered criminals, not only for

committing crimes, but also for belonging to an organization which is

considered criminal. The very fact of belonging to an organization, the

law states, makes a person liable to prosecution. The law does not

require formal proofs to decide if a person is a member of a criminal

organization. A person can be a member of a criminal organization even

though he does not formally belong to the organization. The evidence is

all the more exhaustive if a person is formally put on the list of the

membership of a criminal organization. However, the formal membership of

a criminal organization is not the only basis of criminal responsibility

of a person. A member of the organization should know what is the nature

of the organization, what are its objectives. It is immaterial whether

an individual member knew all directives, all acts of the organization

or whether he knew personally all other members.

One cannot help noting that on the basis of the general principles of

the law, especially in connection with the practice of fascist Germany,

where a whole network of criminal organizations functioned, established

by the usurpers of the supreme powers, the responsibility of individual

members of the organization does not necessarily imply that they were

aware of the penalties attaching to the acts committed by the

organization.

On the basis of the legal code, especially in fascist Germany, where

there existed a whole series of organizations established by the

usurpers of powers now considered criminal, it is impossible to demand

that every member be acquainted with all the actions and all the members

and all the directives of the organization.

May I now pass on to the next problem. It appears to me that there is a

certain degree of complexity attached to the problem of the criminal

organizations. There is very extensive correspondence by members of

various organizations, that has been submitted to the Tribunal on the

subject of these organizations. Such abundance of discussion comes from

an incorrect interpretation of legal proceedings if an organization is

declared criminal. As long as we know the fact that the question of the

individual responsibility of the individual members is fully within the

jurisdiction of the various national courts, the general question of

whether the organization is declared criminal or not is much easier to

follow.

According to the Charter, on the question of declaring an organization

criminal the Tribunal will decide in connection with individual

defendants. Article 9 states that in examining the materials with regard

to each defendant the Tribunal can have the right to declare—and so on.

Therefore, the conclusion is that the facts which decide the solution of

the question as to whether an organization is or is not criminal,

consist of whether there is before us today among the defendants a

representative of this or that organization. It is well known in the

present Trial that all the organizations which the Prosecution want to

be declared criminal are represented on the bench of the defendants. For

that reason alone there has passed through the hands of the Tribunal a

great deal of material and evidence relating to the criminal nature of

the organizations which these defendants have represented that can be

used by the Tribunal to draw a conclusion as to the criminal character

of various organizations. Under such conditions the necessity of calling

special witnesses to testify about this or that organization can take

place only as a source of supplementary and even eventual evidence. And

even then the Tribunal has stated in Article 9 that it is up to the

Tribunal to acquiesce in or to refuse the calling of witnesses or the

introduction of supplementary evidence. It is impossible to deny the

possibility or the necessity of supplementary evidence with regard to

any criminal organization. The Charter of the Tribunal states very

definitely that after the indictment has been made, the Tribunal will do

that which it considers necessary with regard to the Prosecution’s

request for declaring this or that organization criminal. Any member of

an organization has a right to request that the Tribunal permit him to

be heard on whether the organization was criminal. However, this was

introduced into the Charter of the Tribunal for the sake of justice. It

now appears that this article is used for other purposes. If what has

been provided for in Article 9 extends widely enough and if it already

provides for calling witnesses with regard to the criminality of this or

that organization, in substance the evidence submitted by the

prosecutors of the four countries has already given enough exhaustive

reasons for the Tribunal to recognize the organizations indicated in the

Indictment as criminal. At the same time it seems expedient that the

Tribunal should publish Article 10 of the Charter explaining that to

declare an organization criminal does not necessarily lead to an

automatic bringing to trial of all members of that organization without

exception. It means that all questions about bringing any member to

trial and about the responsibility of individual members will be decided

by the national tribunals.

This is all I wanted to state, in addition to what has been stated by my

colleagues.

THE PRESIDENT: Have the defendants’ counsel arranged among themselves in

what order they wish to be heard?

DR. KUBUSCHOK: As counsel for the Reichsregierung, which has first place

in the Indictment as a “criminal organization,” I have, according to the

decision of the Court, the duty of presenting my opinion in regard to

the presentation of evidence. Since, in so doing, I have to discuss

general points of view which affect in the same way all the six

organizations under Indictment, it is probable that my statements will

in the main constitute the opinion of other defendants’ counsel.

However, they reserve for themselves the right to express particular and

supplementary opinion.

The Defense understand the decision of the Court of 14 January 1946 to

mean that at this stage of the procedure the Defense should not produce

detailed arguments against the Indictment as it has been lodged by the

Prosecution and as it has been explained today, also against the concept

of criminal organizations in the sense of the Charter or against other

hypotheses of a declaration of criminality, but should only express

their opinion on the question of what evidence is relevant and how the

evidence shall be presented. Therefore, I shall speak about the basic

questions only insofar as this seems necessary today in this particular

connection. First of all, I shall speak about the contents and the

effect of the requested verdict.

The six organizations under Indictment are, according to the request of

the Prosecution, to be declared criminal organizations in their

entirety. A request of that kind and the proceedings pertaining to it

would represent something unprecedented in the jurisprudence of all

states.

As we know, this request is not uninfluenced by the fact that, contrary

to other nations, in England and even more so in the United States, even

companies and corporations as such can be prosecuted in some cases for

reasons of expediency. This is a legal development called for by the

dominant position which companies and corporations have acquired, above

all, in economic life. This position made their punishment seem

desirable in certain cases. They were affected by this punishment,

however, only to the extent to which they could be affected in their

economic sphere, that is to say, by the imposition of fines. This also

concerns only definite offenses, mostly in the field of administrative

law.

The American Chief Prosecutor and the other chief prosecutors have cited

a large number of precedents, even from German jurisprudence, in which

organizations are said to have been declared criminal. In these

precedents—and that is the decisive factor—the defendants convicted as

criminals were always individual persons, never organizations as such.

But a criminal procedure such as this one would have to deal most

seriously with the organizations as such, as well as with all the

members who are not indicted personally that is—I now refer to Law

Number 10 of the Allied Control Council—would have to pronounce the

most severe sentence, the sentence of death; such a procedure has never

before in the history of jurisprudence been either discussed or applied.

The organizations under Indictment are organizations which differ

greatly in their structure. I do not have to discuss further today

whether they always represented an organically constructed unit. For

this Trial the essential thing is that the organizations under

Indictment have been dissolved by a law of the Military Government, and

therefore, no longer exist. What still exists are only the individual

former members who, therefore, in reality are the actual defendants and

have simply been brought together under the name of the former

organization as a collective designation.

But independent of this question of the nonexistence of the

organizations, it can be seen from the outcome of the procedure that

this is indeed a collective procedure against the individual members of

the organization, and this for the following reasons:

First, to declare an organization criminal means the outlawing and

branding as criminal, not only of the organization as such, but, above

all, of each individual member. Such a declaration, therefore, means a

final sentencing of each individual member to a general loss of honor.

This effect of the outlawing and branding is unavoidable and

ineradicable, especially if that verdict is spoken by so important a

court as the International Military Tribunal before the forum of the

world public. The effect of the outlawing would apply to each member of

the organization and would cling to him, regardless of whether the

subsequent proceedings, as provided for in Article 10 of the Charter,

were carried out against the individual members or not.

Second, in respect to legal procedure, the verdict that has been asked

for provides the possibility of a criminal penalty for each individual

member of the organization. In the subsequent proceedings, according to

Article 10 of the Charter, the criminal character of the organization

will be considered conclusively determined.

In execution of this, Law Number 10 of the Allied Control Council, of 20

December 1945, has in the meantime been issued. According to this law

the mere fact of having been a member of an organization which has been

declared criminal by the International Military Tribunal renders liable

to punishment as a criminal each individual member. Penalties ranging

from the highest fines to compulsory labor for life and the death

penalty are provided.

The proceedings according to Law Number 10 are concerned only with

determining membership and bases the punishment on this. In these

proceedings only grounds for personal exoneration, such as

irresponsibility, error, or coercion can be discussed. But these concern

only the membership as such and will apply only in a very few cases.

Whatever concerns the character of the organization, the criminal aims

and actions of members of the organization, especially the individual

member’s knowledge of these—all these are matters which will not be

discussed in the proceedings any more according to Law Number 10. In the

proceedings against the organizations a binding declaration has been

made. Therefore, the proceedings against the organizations anticipate

the biggest and most important part of the proceedings against every

individual member, while the subsequent proceedings, according to Law

Number 10, to all intents and purposes only draw conclusions.

In connection with the question of the effect of the verdict, the

numerical aspect should also be touched upon.

The SA at the beginning of the war in 1939 had about 2.5 million active

members, to which should be added, let us say, 1 to 2 million,

representing those who during the preceding 18 years, either quit the SA

or had to leave because of their military service; therefore, in all, up

to 4.5 million.

As far as the SS is concerned, my colleagues have not yet been able to

give a final estimate. It will have to be considered that the Waffen-SS

alone had an active membership of several hundred thousand men at any

given time. If we take into account the losses due to the war, which

were very considerable but which to a certain extent were assessed in

the proceedings, we find in the case of the SS as well that the figure

runs into millions.

The Leadership Corps always had, after 1933, a fixed membership of about

600,000 to 700,000 members. Changes in the official personnel were very

frequent. We have to take into account that the membership changed at

least twice during the entire period, so that here also the complete

figure will be about 2 million.

The entire figure covered by these proceedings is therefore very large.

The reduction which the Tribunal has today thought fit to make would not

reduce that number to any very large extent. Basically, it will

certainly make no difference whether this very large number which I have

just mentioned will include a half, a third, or a quarter of the adult

male population of Germany. If we consider the war losses among these

age groups, we can say with great certainty that the Indictment will

actually include a very considerable part of the adult male German

population.

I shall speak now about the concept “criminal organization.” The

necessary condition for an organization’s being declared criminal is the

criminal character, as appears in Article 9, Paragraph 2, of the

Charter. The Charter does not interpret either the concept “criminal

character” or that of “criminal organization.” If we ask by means of

which legal system this gap in the Charter should be filled, then,

according to the general principle of _lex loci_, German law first of

all has to be considered. But that is of no avail, because these two

concepts, according to every legal code in the world, also represent a

_terra nova_ in criminal law. Here, too, the Defense reserve for

themselves the right to express their considered opinion at the time of

the final pleadings.

In any case, we are of the opinion that because of its

already-mentioned, far-reaching consequences the declaration asked for

can be made justly and fairly within the framework of the validity of

the Charter only if: (1) the original purpose—that is, the constitution

or the Charter of the organization—was directed to the commission of

crimes in the sense of Article 6 of the Charter, and if this purpose was

known to all members; or (2) in case the original purpose of the

organization was not criminal, if all members during a certain period of

time knowingly participated in the planning and perpetration of crimes

in the sense of Article 6 of the Charter. Here, also, it is necessary

that the development should have been such that these crimes represent

typical actions of the organization, for only then can we speak of a

criminal nature as applicable to an organization as well as to an

individual human being.

According to this interpretation, the concept “criminal organization” in

the sense of Articles 9 to 11 of the Charter is in large part identical

with the concept “criminal conspiracy” which plays an important role in

the former German and Italian criminal law; also with the concept

“conspiracy,” with or without action for its execution, in English or

American common law; also with the concept “Mordkomplott” (conspiracy

for the purpose of committing murder) in the sense of Paragraph 49-b of

the German Penal Code; and, finally, with the concept of a “Common Plan

or Conspiracy” in the sense of Article 6 of the Charter, here also with

or without action for its execution.

All these penal codes have in common that judgment can be delivered only

against those persons who have taken part in the criminal organization

knowing its purpose.

In my opinion, negligence cannot be sufficient when passing judgment

subjectively because of the general principle that in cases of serious

crimes—and in this case the penalty may be death—there must always be

full proof, and that negligence cannot be sufficient. Therefore, as a

matter of principle, it has to be required in these present proceedings

that an organization under Indictment can be declared criminal only if

it has been ascertained that: Firstly, the aims of the organization were

criminal in the sense of Article 6 of the Charter, and, furthermore,

that all members at least knew of these criminal aims. This is also

necessary for the reason that, as has just been said, this Trial before

the International Military Tribunal represents the essential main part

of the criminal proceedings which will ascertain the guilt of each

individual member of the organizations.

Justice does not permit that those members who did not possess the

aforementioned knowledge and who are therefore innocent be included in a

verdict. And this will not lead to that consequence mentioned by Justice

Jackson, namely, that a rejection of the verdict would mean a triumph

for those who are guilty. I am of the opinion that the guilty ones,

regardless of their number, should be brought to punishment. Despite all

considerations of expediency, the issue should not be that along with

the guilty ones an enormous number of innocent persons also be punished.

Therefore, to come to the core of the question, this is to be regarded

as relevant. The relevancy and admissibility of evidence depends on a

definition of the criminal organization and of its criminal character.

On the basis of my definition I contend that the following points are

relevant:

(a) That the organizations, according to their constitution or statutes,

did not have a criminal composition and did not pursue any criminal aims

in the sense of Article 6 of the Charter.

(b) That within the organization, or in connection with it, crimes in

the sense of Article 6 were not, or at least not continuously, committed

during a certain period of time.

(c) That a certain number of members had no knowledge of any possible

criminal constitution or criminal purpose, or the continuous commission

of crimes according to Article 6, and that they also did not approve of

these facts.

(d) That a certain number of members or certain closed independent

groups joined these organizations under compulsion, or pressure, or as

the result of deception, or by order from higher authorities.

(e) That a certain number of members without any action on their part

became members of these organizations through the bestowal of honorary

membership.

Since I know that the questions to be decided represent a _terra nova_

in the field of criminal law, I believe that in the course of the

presentation of evidence we shall receive many other suggestions.

Therefore it will be expedient if the Tribunal at the present stage of

the Trial do not bind and limit themselves by a final definition. I ask

rather that evidence be admitted to the greatest extent. In conclusion I

come to the question of how the presentation of evidence can be carried

out in practice and how the legal hearing of the member can be made

possible according to Article 9, Paragraph 2, of the Charter.

The principles valid in criminal procedure in all countries allow every

defendant before the court certain rights. The most important principles

are the principle of direct oral proceedings and the right to defense

and to a legal hearing. Since, according to my statements, the real

defendants are the members of the organizations, these rights must be

accorded to every member of the organization. In spite of this basic

point of view, which will be discussed in still greater detail in our

final pleadings, and with all legal reservations, the Defense do not

overlook the fact that for all practical purposes that is impossible

within the framework of this Trial. A solution must be found, since the

Prosecution have lodged the Indictment of the organizations on the basis

of the Charter in its present form.

This leads to the necessity of carrying out the proceedings, whereby the

aim of all people taking part in the Trial can be only that of finding

the best possible solution by getting as close as possible to the

universal and, in our opinion, inviolable points of view. In this

connection the Defense in the same way as the Prosecution are gladly

aware of their duty to work constructively towards a decision by the

Tribunal.

If, now, the enormous number of people who are affected by the

Indictment gives rise to tremendous difficulties which prevent a

reasonable solution of this problem, an adequate basis for judgment of

the aims of the organizations, as well as of the actions and the

subjective attitude of the individual member of the organization, must

nevertheless be found.

In order to make any headway in these proceedings, an attempt must be

made to attain a result in respect to the collective membership by

fixing certain types. We do not fail to recognize the great difficulties

which confront the passing of a just sentence when a typical aspect is

taken as the basis for judgment. Every attempt to attain, on the basis

of a large number of individual witnesses to be brought before the

Court, a clear picture of that which is typical would be unavailing. The

only way, in our opinion, is to separate the presentation of individual

evidence, in respect to time and place, from this Tribunal.

One way of achieving this would be an exact interrogation of the

individual members at the places where—this would apply to most of the

organizations—at present large numbers of them are being kept in

internment in the various camps. We believe that the best way to

investigate individual cases, and the one most suitable to the Court,

would be to assign this work to one or more suitable spokesmen in each

camp, that is to say, of course, under the supervision and with the

assistance of the Defense Counsel or their assistants, and then bring

these spokesmen before the Court as witnesses so that they may give a

picture of the activity and attitude of the individual members.

We believe that the way to get as clearly and conscientiously presented

a picture as possible would be for these spokesmen to get from the

inmates of the camps affidavits about the main points of Indictment

which have been specified by the Prosecution. The spokesmen could then,

as witnesses, say under oath what percentage, on the basis of these

affidavits of the individual inmates of the camps, had taken part in the

criminal actions mentioned in the Indictment or had known anything about

them. Certainly there are certain difficulties connected with this which

will also have to be considered.

In order to get a true picture, one will have to relieve the individual

inmates of the suspicion that through a truthful testimony submitted to

the Prosecution they might be offering material which could be used

against them personally.

We consider it therefore necessary that insofar as these affidavits are

to be presented to the Court as documentary evidence, the Prosecution

should make a statement that this material will not be used for the

purpose of criminal proceedings against persons. This statement would

naturally not involve any immunity for individual members; but the

individual inmate of the camp would be assured that the affidavit made

by him under oath does not establish his guilt as far as future criminal

proceedings are concerned.

If the Prosecution do not want to accept this proposal, there would

still be the possibility, without submitting these documents, of using

the testimony of the spokesmen, who could give information as to the

percentage of the people who took part or did not take part in criminal

activities or plans.

THE PRESIDENT: Since you have not finished, I think we had better

adjourn for 10 minutes.

[_A recess was taken._]

DR. KUBUSCHOK: Before the recess I referred to a suggestion for getting

information about the actions and the attitude of the members by means

of typical facts. I continue.

This taking of evidence would have, for practical purposes, to extend to

a sufficient number of camps in all the zones of occupation. From the

results of this taking of evidence a conclusion could then be drawn, on

the basis of what is found to be typical, as to the criminal activity

and attitude of the individual member of the organization, and at the

same time, a conclusion as to whether or not the organization had a

criminal nature.

If the Prosecution are in agreement with the Defense so far, I believe

that I have perhaps found in this way a means of collecting the relevant

evidence, including all positive and negative elements.

To whatever extent the hearing of inmates of camps does not suffice,

which might be true of the one organization or the other, the hearing of

members of the organization who are not in custody might have to be

considered. Here, too, a proper way could probably be found which would

likewise make possible and easier the execution of the tasks of the

Tribunal.

DR. SERVATIUS: I, too, should like to take a stand on the questions now

being discussed before the Court. I am not at present in a position to

take a stand on the profound and well-presented statements which Justice

Jackson has made here. I should not like to make a brief and less

carefully thought-out answer, but the Court will understand that I and a

number of my colleagues desire to put our case after studying the

material and the laws. Perhaps the Tribunal will give us the opportunity

to do this very shortly.

I should like now to take a stand on these questions along more

technical lines, in order to fulfill my duty and on behalf of the

Defense to take a clear stand on these clear questions.

In the first question it was asked what evidence is to be admitted and

what particular evidence should be presented here in the main trial

before this Tribunal.

The answer is this, that all evidence is relevant which is of

significance for the determination of criminality. If one examines the

concept “criminal” it is seen that there is no factual situation as

defined by criminal law, nor can there be any, for it is not a question

of determining the factual elements but rather of a judgment as to

whether an act is criminal in the same way as judgment as to whether

something is good or bad. Consequently, the Charter does not oblige the

Tribunal to pass sentence and declare such-and-such to be criminal, but

rather it states that the Tribunal “may” pass such a sentence, but not

that it “must” reach such a decision.

It can thus be seen that the Tribunal is here confronted with a task

which is basically different from the activity of a judge. A judge is

obliged, when certain facts determined by law are put before him, to

pass sentence, but this Tribunal is to determine the culpability of a

set of facts, on the basis of which the judge will later pass sentence.

Such a task is, however, that of a legislator and not of a judge. The

Tribunal here determines what is deserving of punishment and thereby

creates a law. In this way the Tribunal also creates that basis for the

procedure which Justice Jackson mentioned in a former address of

his—the basis for procedure in the subsequent individual trials.

It is this basis for procedure which the legislator gives to the judge

who is to deliver judgment. In such a case the burden of proof is

likewise reversed, as Mr. Justice Jackson also has constantly mentioned.

It is as if a thief were before the court—his objection that theft is

not punishable, that “possession is theft,” would be questioned.

That the activity of this Tribunal is legislative can also be seen from

the fact that, without setting up the Tribunal, the signatory powers

could just as successfully have determined that all members of

organizations could be brought before a court because of their

membership.

Law Number 10 of the Allied Control Council, that has often been

mentioned today, corroborates this interpretation, since it constitutes

the law for carrying out the skeleton law expected of this Tribunal. The

examples of the criminal nature of the organizations that have been

given here in Mr. Justice Jackson’s address today show again and again

that it is a question of laws and not of judgments.

It is also characteristic of the legislative function, that in all

discussions considerations of expediency take first place and Justice

Jackson asked in a previous statement that the verdict should provide

the means to proceed against the members of the organizations.

It is seen that the Court must deal with _de lege ferenda_

considerations on an ethical basis. But it must be proved that the

members of the organizations are punishable, and “punishable” is

equivalent to “criminal.”

In order to determine the factual elements, the judge brings evidence.

As legislator, the Tribunal must collect the material for legislation.

The judge can, on the basis of the legally proscribed criteria, easily

determine what is relevant as proof of these criteria and what he

therefore must admit as proof.

It is characteristic that such a determination here in this matter makes

for difficulties. The legislator proceeds differently from the judge. He

studies the facts to see if they deserve punishment, and for him all

those facts are relevant which are of significance for the contents of

his law.

In this matter he must have an over-all picture of the entire problem

and must take into consideration both the good and bad aspect of the

matter to be judged.

The basic principle of justice is that only the guilty be punished. If

the legislator wishes to achieve this, he must examine whether only

guilty people will be affected by his laws. He must therefore also

investigate the objections which any person affected by his law might

make. The innocent person is protected in this way, that in the

individual case the guilt of the individual must be proved unless the

legislator actually has in mind responsibility without guilt.

Every killing of a human being is punishable, but whether the person is

guilty has to be proved. He can avail himself of the so-called objection

that the death was not intentional. If the legislator does not want to

permit such an objection, then he must himself examine the material that

leads to such an extraordinary measure. The extent of the material to be

examined, that is, the taking of evidence, depends on the contents of

the law that is to be passed. Inasmuch as in the subsequent individual

trials all objections remain open, the Tribunal does not have to concern

itself with them. But the Tribunal must consider to what extent the

innocent person in the individual trial will have legal guarantees which

protect him from an unjust punishment.

It is absolutely necessary for the Tribunal also to examine every

submission which the individual member cannot bring in the subsequent

proceedings.

In anticipation of these powers of the Tribunal, it has already been

determined by Law Number 10 mentioned above that every member can be

punished. Thereby these punishments, of which we have heard in the

previous speeches, have already been determined. It thus appears as if

the Tribunal could only pass a judgment _en bloc_ without having any

right to modify it, and consequently without possessing any influence on

the legal effect of its verdict. But such a concept is in contradiction

to the basic idea of the Yalta Conference, which was that of

transferring to the Tribunal the legislative powers of the signatories,

with the express purpose of vindicating this principle of justice,

namely, that only the guilty be punished, on the basis of examination of

the facts through the hearing of the members in question. Consequently

the Tribunal must have a right to determine in individual cases the

basic conditions for punishability, and to determine the objections

which should remain open to the individual, and the Tribunal must also

be able to limit the effect of its judgment by regulation of the

punishments.

I believe that Mr. Justice Jackson expressed an opinion today which does

not contradict this.

According to the sense of the Charter, the Tribunal is not permitted to

transfer its responsibility to the individual courts by simply leaving

for all practical purposes the decision to these courts which because of

their composition may have quite different legal views.

The members of the organizations have been granted that very right to be

heard here before the International Military Tribunal and particularly

because of the significance of the judgment, which in all cases contains

a grave moral condemnation. To what extent then should the Tribunal

concern itself with the material for this taking of evidence? I believe

that the Tribunal, in order to determine what is deserving of

punishment, must investigate that which is typical, while the purely

individual can be left to the subsequent proceedings.

This separation of the typical from the individual, however, is not

easy, for the submission of the members often has a double significance.

Thus the submission of a member that he did not know about the criminal

nature of the organization could mean, on the one hand, that such

purpose never existed, or, on the other hand, that the member had no

knowledge of that purpose which was really there. The first is an

objection which concerns the organization, the second a purely personal

objection.

On the basis of these arguments I should like to answer the Tribunal’s

first question as follows:

The factual elements of criminality as defined by criminal law cannot be

found here; the determination of criminality is the determination of

punishability as a legislative task of the Tribunal. Examination of

evidence in the procedural sense is in reality the examination of the

legislative material including the objections of the members of the

groups and organizations. To what extent the Tribunal itself must

examine the material depends on the scope and the effect which it

intends to give and which it is able to give to the verdict. Only that

which is not typical and which is not of importance as far as _de lege

ferenda_ considerations are concerned, only that can be left to the

individual trials.

To Questions 2 and 3: Under Point 2 and 3 the Tribunal puts a question

regarding the limiting of the groups of members and the limiting of the

length of time of the criminality. Both questions touch the same

problem, namely, whether such a limitation is dependent on a motion on

the part of the Prosecution, or whether the Tribunal itself can limit

the contents of its verdict.

I believe Mr. Justice Jackson today expressed the opinion that the

Tribunal has the power to make such a limitation. But, as regards the

political leaders, the Prosecution reserve to themselves the right, in

the case of a limitation of the groups of members as proposed by them,

later to introduce other trials against these members who are now being

excluded or to take other measures.

However, such a right is not given to the Prosecution in the Charter. It

also stands in contradiction to the natural powers of the Tribunal of

including in its decision an acquittal—a power which cannot be

eliminated by reservation made by the Prosecution. The evidence material

to be examined also cannot be limited through such a limitation as

proposed, for the judgment delivered on the indicted organizations must

include these organizations as a whole. It is not permissible to seize

upon merely the unhealthy elements of groups during a period which was

not typical and still declare the organization criminal.

That which is to be considered a group or an organization does not

depend on the discretion of the Prosecution, as is also seen in Article

9, Paragraph 1, of the Charter, according to which the criminal

character must stand in some relationship to the acts of one of the main

defendants. This can only be understood to mean that the membership of

the organization must be influenced by the actions of one of the major

defendants at a given time. However, this is not for the Prosecution but

for the Tribunal to decide.

Accordingly, I should like to answer Questions 2 and 3 as follows:

Question 2: A limiting of the incriminating period does not depend on a

motion of the Prosecution. The Tribunal itself can and must limit the

length of time, if the organizations or groups were not deserving of

punishment throughout the whole period of their existence. If the

actions of the main defendant, as a member of the organization, were not

incriminating during the whole period of the existence of the

organization, then such a limitation must follow.

Question 3: For the limiting of the groups of members the same applies

as for the limiting of the period of time.

The Tribunal can, on the basis of its own powers, limit the effect that

its verdict will have in the case of all groups and organizations. It

must undertake this limitation, if the actions of the main defendant in

his capacity as a member of the organization are not to incriminate

certain groups of members. A limitation of the Indictment or of the

effect of the verdict does not limit the evidence material which is the

basis of the judgment.

These were the remarks I wanted to make in answer to the questions of

the Tribunal. I should like now merely to take a stand on a question

that has also been brought up today, namely, the application for a legal

hearing, if the Tribunal permit me to discuss this question. According

to Article 10 of the Charter, every member of an organization can be

brought to trial, if the organization has been declared criminal. The

decision is left up to the Tribunal. The essential task of the Tribunal

is the hearing of the members. Without this hearing a sentence is not

possible. That is the basic condition without which the proceedings

cannot be carried out. So far, the Defense has about 50,000 applications

from the millions of members. In order that the Tribunal should not draw

the false conclusion that the overwhelming majority of those affected

admit their guilt by remaining silent, I must emphasize that such guilt

will be most passionately denied by all those affected.

I shall therefore go into the reasons why so few applications have been

submitted, and I shall show that this is not the fault of those affected

or the result of negligence. Not a lack of interest or disrespect of the

Court but rather certain clear facts are responsible for this lack of

response.

The announcement in the press and over the radio at the beginning of the

proceedings regarding the right to be heard was made at a time when

there were practically no newspapers in the destroyed cities and radios

were a rarity.

In addition, because of the paper shortage, it was made in small print

and for the most part was simply not understood. The Tribunal ordered an

announcement to be made in the internment camps, where a great number of

the people affected are concentrated. To what extent this announcement

actually was made, I have not yet been able to determine. Mr. Justice

Jackson showed various documents this morning and from them I shall be

able to inform myself. The fact that so few applications have been made

gives cause for concern. But even those people who have obtained

knowledge of their right have apparently not been able as yet to make

applications to the Court. At the time of the announcement there was no

postal service between the various zones, and there are still no postal

connections with Austria, where there are probably tens of thousands of

men in custody.

In the announcement to the organizations, because of the lack of postal

facilities, two additional ways were provided for submitting these

applications. Both of them proved to be insufficient and are the main

reason why we have so few applications. Those members who are not in

custody were to submit their applications through the nearest military

office.

I know of no case in which an application was made in this way. The

attempt to use this procedure failed because of the lack of co-operation

on the part of the offices. I could give an example of this.

The interned members were to submit their applications through the

commanding officer of their camp. Only in the case of a few camps, weeks

and months after the beginning of the Trial, were applications, which

had been made in November, received, and even then only from some of the

camps in the American and British zones and from a camp in the United

States. From the Soviet, Polish, and French zones, as well as from

Austria and other camps in foreign countries where there are camps, no

applications have as yet been received, so far as I know. I shall leave

it to the Tribunal to form its opinion of these facts.

The uniformity of the circumstances shows, however, that it cannot be

the fault of the members of the organizations. Of the many difficulties

I should like to give only one striking example, which will give an

insight into the situation. In one camp about 4,000 members of various

organizations asked in November 1945 to be permitted to make use of

their right. A few days ago I was told in the camp by a guard officer

that at that time no applications were permitted since those in custody,

according to the rules of the camp, could not communicate with anyone

outside the camp. An army order would have been necessary for

transmissions of the applications, but there was no such order and

present restrictions were strictly adhered to.

Another reason for the nonarrival of applications is the fact that those

concerned feared certain disadvantages. There was the fear that the CIC

would take action against the applicants because of their applications.

This fear was inspired particularly by the fact that the announcement of

the right to make applications was accompanied by the notice that the

applicants would not be granted immunity of any kind. The effect of this

is seen particularly in the case of those members not in custody, from

whom only very few applications have been received, and these very often

submitted anonymously or under false names.

It would be welcome if the Tribunal could inform the public that such

fears are without foundation, and that the participation of all is

sought so that a false decision can be avoided. Thereby the inadequacy

of the present procedure for making applications would be remedied.

From all this it can be seen that the first stage of the making of

applications has already shown itself to be so inadequate that the legal

hearing is a mere illusion. But even those applications that have been

received are, with a few exceptions, worthless, and for the following

reasons: On the basis of the applications the Tribunal is to decide

whether persons should be heard. But for practical purposes this can

happen only if these applications state the reasons. Such reasons are

either entirely lacking in the applications or they are useless. An

application without contents or an application which contains in the

main mere asseverations and figures of speech can form no basis for a

decision.

Some of the applications do not even mention the official function of

the member in the organization or his civilian profession. This faulty

sort of application can obviously be traced back in the case of the men

in custody to an order issued by the camp commander which permitted only

collective or group applications or prescribed certain forms to be

followed. All those affected, whether in custody or not, were not able

to set out their reasons intelligently, because those accused know only

that their organization is said to have been criminal, but they do not

know in what this criminality consists. Insofar as detailed statements

were made, in single cases, they are based on assumptions.

In order to relieve the situation, Defense Counsel have visited various

camps known to them to clear up the matter and to get practical

information. I shall not go into the difficulties which had to be

overcome. I do not want to discuss the limitation placed on the length

of time that we could stay in the camp and similar things; but I must

mention that the visits to the camps have been without success insofar

as I have not yet received the sworn affidavits and the other written

statements of the members made subsequent to our visit, although I know

that in one case they were handed over to the camp commander.

In these circumstances the fact is that today, 3 months after the

beginning of the Trial, the technical basis for the procedure for

hearing the members is not yet in existence. Defense Counsel for the

large organizations are also hardly in a position to make up for this

delay in a short period of time. On the other hand, the actual material

is extremely comprehensive, as in the case of the political leaders,

where there are about fifteen to twenty categories, such as the Workers’

Front, Propaganda Section, Organization Section, and so forth, which

must be examined as to their functions and as to their criminal

character. None of this can be neglected, and even the appearance of a

less careful treatment must be avoided. I shall not discuss the

difficulties which confront the Defense Counsel as a result of the fact

that Defense Counsel now for the first time learn from the Prosecution

of certain legal questions.

The members in custody are particularly interested that their case be

decided quickly. Nevertheless, I am compelled by prevailing conditions

to make a motion, namely, that the proceedings against the groups and

organizations that are to be declared criminal be separated from the

main trial and be carried out as a special subsequent trial. This motion

is also compatible with the particular nature of the trial as I

discussed it at the beginning of my remarks.

I should like to add to my motion a suggestion as to how the legal

hearing might be made possible. This proposal of mine is occasioned by

the proposal made this morning for carrying out the hearing by means of

a “master,” that is, I assume, a legal officer of the Allied armies.

I cannot object too energetically to this suggestion. In my opinion, it

is one of the main rights of a Defense Counsel to collect his own

information, and it is the right of every defendant to speak with his

counsel. It would be incomprehensible that the Allies, who are concerned

with the prosecution, should at the same time work for the Defense. One

cannot expect that an officer, despite any amount of objectivity, could

be so objective in his feelings that he would give information to the

defendant and have an understanding of the latter and his feelings.

My proposal is this: That each camp should have a German lawyer who

receives his information from the main Defense Counsel and instructs the

members interned in the camp and collects information. Then, in a

relatively short period of time, a selection of material can be made by

the Defense Counsel—a selection of the persons who can appear here as

well as of the material that can be submitted of the latter and his

feelings.

In the proposal made here this morning by the Prosecution I see an

elimination of the Defense Counsel, and I should have to ponder a long

while as to what stand I, on behalf of the Defense, would take to such a

proposal.

DR. RUDOLF MERKEL (Counsel for the Gestapo): Regarding the general

questions concerning the admissibility of declaring an organization

criminal, the technical procedure for the submission of evidence, and

the criminal character of the organizations in general, I refer to what

my colleagues Dr. Kubuschok and Dr. Servatius have said. I have just a

few additional statements to make.

Regarding the question of applications, I can say from my own experience

that it has seemed strange to me, too, that the length of time between

the formulation of applications in the individual camps and the arrival

of these applications in the hands of the Defense is so extremely long.

To mention one example, a few days ago we received applications from a

camp in Schleswig-Holstein, some of which were drawn up in November and

December. I, myself, in order to get information, sent letters to the

camps. I sent them 5, 6, and 7 weeks ago and I have so far received no

answer.

In Camp Hersbruck, for example, I know that in November an application

for a hearing, with reasons given in detail, is said to have been sent

by members of the SS and Gestapo to the Defense Counsel—this has been

confirmed to me by reliable sources. Neither the Defense Counsel of the

SS nor I have received this application.

Very few applications have been received from members of the Gestapo. In

my opinion one of the reasons is that the far greater number of

internees doubtless do not know that they are being represented and

defended in this Trial, for the announcement sent to the camps was made

in November of last year. Defense Counsel for the organizations were not

appointed until the decision of 17 December 1945. The correctness of my

opinion can be seen conclusively, I believe, from the following: About

three weeks ago in a German newspaper, the _Neue Zeitung_, an article

appeared regarding this question of the organizations and in this

article it states, word for word: “The organizations, as is, of course,

well-known, are not represented in the Nuremberg Trial.” Thus, if not

even the press knows of the fact that Defense Counsel for the

organizations have been sitting here in the front row for months and

have often spoken here from the lectern, what can one expect the

individual internees, who are living in camps hermetically shut off from

contact with the rest of the world, to know about the facts of the

Defense? That is what has to be said on this point.

I, also, by the way take the point of view that the question whether the

organizations in their entirety can be indicted here is an absolute

_terra nova_ in the history of jurisprudence and that it is something

which in its extent and its scope and in its effects shakes the very

foundations of jurisprudence. In addition, as has been mentioned,

organizations are to be judged which ceased to exist almost a year ago.

In the criminal procedure of all civilized countries it is a basic

condition that the defendant still be alive; proceedings cannot take

place against a dead defendant.

According to Mr. Justice Jackson’s statements today, the organizations

of the Gestapo and SS, for example, are to be held responsible for the

liquidation of the Jews in the East; and it is pointed out that because

of the death of millions of Jews and the impossibility of determining

who the individual perpetrators were, the organizations as such must be

judged in order that the guilty be punished. Of course, the Defense

holds the conviction and takes the point of view that the guilty must be

punished, but only the guilty. It is a fact, for example, that an

Einsatzgruppe of the SD, whose task it was to solve the Jewish problem

in the East, contained on the average only about 250 members of the

Gestapo. Considering the total number of 45,000 to 50,000 members of the

Gestapo, this figure is thus a very small one. In the case of a general

verdict against, for instance, the Gestapo, more than 45,000 people

would be affected who had absolutely nothing to do with this matter. I

refer to the example of a mass murderer who cannot be captured, and

whose whole family is taken into custody in his stead and condemned.

In view of the very important statements which have been made today by

the Prosecution regarding the question of the organizations, I ask the

Tribunal for permission, after the record has been received, to state my

attitude, if necessary, to just a few other points today; first of all,

to the question of the time during which the Gestapo is to be considered

criminal. In this connection I must assert that at least until the year

1939 the Gestapo was a lawful, legally established institution. It is

also true that the Indictment refers to crimes which can be charged to

the Gestapo only after the autumn of 1939, that is, after the beginning

of the war.

Today the Prosecution have furthermore excluded secretarial and office

workers from the Indictment. I am in agreement with this. It is in

accordance with the motion made by me already in December. I submit

further that not only the secretarial and office personnel but also all

other employees be excepted, because the reason for dropping the charges

against the office personnel is doubtless that the Prosecution are

convinced that this office personnel had nothing to do with the crimes

of which the Gestapo is accused.

It should also be considered whether the administrative officials of the

Gestapo, who represented about 70 percent of the personnel of the

Gestapo, should be excluded from the Indictment. All of the 500

applications received so far are from such administrative officials.

These officials were trained only in the field of administration. They

had neither the training nor the knowledge for the making of criminal

investigators. They could not be used for the execution of any criminal

actions, because they had no executive power. They were active only in

matters of personnel and finance—personnel matters such as the

appointment of officials, promotions, dismissals, and so forth; matters

of finance such as the administering of budget funds, figuring out and

compiling salary and wage lists, renting of offices, _et cetera_. These

are all things which have nothing to do with executive power, and

especially not with the crimes imputed to the Gestapo by the

Prosecution. In my opinion these people are just as entitled to

exemption as the secretarial and office personnel, who have already been

exempted by the Prosecution.

I should like to touch briefly on one other point of view, that is, the

question of voluntary joining of an organization—a question which has

played an important role. On 7 June 1945 Mr. Justice Jackson, in his

statement to the President of the United States, said, among other

things, the following: Units such as the Gestapo and SS were fighting

units and consisted of volunteers—people especially suited for and

fanatically inclined to the plans of violence of these units. To what

extent that is true of the SS, I do not know. As far as the Gestapo is

concerned, it certainly is not true, for the Gestapo was a State

organization founded by the Defendant Göring on the basis of the law of

23 April 1933. It was a police authority just as was the Criminal Police

whose duty it was to track down crimes or the Regular Police who were

responsible for controlling traffic. The personnel consisted mostly of

life-long career officials, some of whom had been in the police service

many years before the creation of the Gestapo, and who, when this police

organization was created and in the ensuing years, were ordered to,

detailed to, or transferred to this police authority. According to the

German law affecting civil servants these officials were obliged to

follow such orders. They had never come voluntarily to the Gestapo. At

the most there might perhaps have been 1 percent who were voluntary

members; but 99 percent of the members were forcibly ordered on the

basis of this law.

That is what I have to say at the moment. I should like, however, to

reserve for myself the right to speak some time later about today’s

discussions.

THE PRESIDENT: Yes, certainly. We will adjourn now.

[_The Tribunal adjourned until 1 March 1946 at 1000 hours._]

SEVENTY-FIRST DAY

Friday, 1 March 1946

_Morning Session_

THE PRESIDENT: At the conclusion of the argument on the organizations,

which the Tribunal anticipates will finish before the end of today’s

session, the Tribunal will adjourn into closed session. Tomorrow morning

at 10 o’clock the Tribunal will sit in open session for consideration of

the applications for witnesses and documents by the second four

defendants. Will the defendant’s counsel who was in the middle of his

argument now continue? Dr. Merkel, had you finished?

DR. MERKEL: Yes, Sir.

DR. MARTIN LÖFFLER (Counsel for the SA): May it please the Tribunal: The

objections and misgivings expressed yesterday by the Defense regarding

the criminal proceedings against the six accused organizations are

particularly applicable when judging the SA.

No other organization is so much exposed to the danger of a sentence

contrary to our sense of justice as is the SA. I ask the Tribunal’s

permission to submit the reasons for this fact.

The demand of the Prosecution that the SA should be declared a criminal

organization affects at least 4 million people at a conservative

estimate. The limitation according to groups approved yesterday by

Justice Jackson was gratifying and welcome; but it will have no

appreciable effect on the numbers since the groups eliminated yesterday,

the armed SA units and the bearers of the SA Sports Badge, were not full

members of the SA. The only persons so far eliminated, therefore, are

the SA Reserves. As no limitation according to time was made, these

criminal proceedings will include everyone who ever belonged to the SA,

even for a very short time, during the 24 years between its

establishment in 1921 and its dissolution in 1945, that is to say,

during a period of almost a quarter of a century.

We heard yesterday from the Prosecution that the criminal acts charged

to the organizations are the same as those charged to the main

defendants, namely, Crimes against Peace, crimes against the laws or

customs of war, and Crimes against Humanity, as well as participation in

the common conspiracy.

If we now contemplate the possible participation of these 4 million

former SA men in these four important categories of crime, we get the

following picture:

Crimes against the laws or customs of war are not charged to the SA. It

is true that the Prosecution presented an affidavit saying that the SA

also took part in guarding concentration camps and prisoner-of-war camps

and in supervising forced labor; but, according to the presentation of

the Prosecution, this did not occur until 1944 within the framework of

the total war raging at that time, and it has not been charged that this

activity of the SA involved any excesses or ill-treatment.

In none of the atrocities reported here by witnesses and documents did

the SA with its 4 million members participate. The few offenses against

humanity charged to the SA by the Prosecution and committed by

individual members in the course of almost a quarter of a century can in

no way be compared with the serious crimes against humanity of which we

have heard here.

The occupation of the trade-union buildings by the SA, adduced by the

Prosecution as another point, took place on the order of Reichsleiter

Ley, who used the SA for this operation, and this happened after the

seizure of power.

Even the Prosecution did not assert that any outrages, ill-treatment, or

excesses occurred when this operation was carried out. The fact that in

connection with the seizure of power in the spring of 1933 individual

excesses occurred, and that the American citizens Rosemann and Klauber,

according to the affidavits submitted by the Prosecution, were beaten on

this occasion is certainly regrettable. However, such excesses on the

part of individual persons are unavoidable in organizations comprising

millions of people and, considered by themselves, are hardly proper

grounds for declaring the entire organization criminal.

The participation, finally, of the SA as guard troops in concentration

camps is, according to the presentation of the Prosecution, restricted

to single exceptions and ended anyway in 1934. The commandant of the

Concentration Camp Oranienburg, according to the presentation of the

Prosecution, was an SA Führer. However it is not asserted that he

committed any atrocities.

The second case, the ill-treatment of prisoners in the camp of Hohnstein

by SA and SS members in 1934 led to criminal proceedings and the SA men

guilty were sentenced to imprisonment of up to 6 years.

As a last individual act there remains the participation of the SA in

the excesses during the night of 10 and 11 November 1938, when the

windows of Jewish stores were broken and the synagogues were burned.

Here, too, the plan and the order did not originate with the SA. The SA

was simply commissioned by the highest Party leadership to carry out

this order. Finally if we consider that during the political struggles

of 1921 to 1933 the old SA was involved in brawls—often purely

defensive—with political opponents and that it did not develop into an

organization with millions of members until after the seizure of power,

we arrive at the following conclusion, expressed in figures:

On the basis of the presentation of the Prosecution at most 2 percent of

all the indicted former SA members participated in punishable individual

actions; 98 percent of the 4 millions, according to their conviction,

kept their hands clean of any such punishable individual acts.

Here, too, the Prosecution will not want to insist that the excesses of

these 2 percent considered by themselves should brand the entire

organization as criminal. These 98 percent, that is in round numbers

3,900,000 former SA members, must nevertheless defend themselves here

against the charge of having participated in the preparation of the war

of aggression or in the planning or execution of the common conspiracy,

or, formulated more strongly, against the charge of having belonged to

organizations which pursued these criminal purposes.

What is the result if we apply the definition of the criminal nature of

an organization as formulated yesterday by Justice Jackson and Sir David

Maxwell-Fyfe?

The SA members will acknowledge that the criteria under Points 1 and 2

as defined yesterday are also true for the SA, namely, that the SA was

an aggregation of numerous persons with collective aims and a membership

which was voluntary in principle. However, they will strenuously deny

the application of the Criteria 3, 4, and 5. Point 3 requires that the

organization pursued objectively criminal aims in the sense of Article 6

of the Charter. The millions of members, if testifying here, would state

that neither in the programs nor in the speeches of their leaders had

they been called upon to pursue such criminal aims or methods. Whether

the leaders of the SA pursued such criminal aims in secret or not these

people are not in a position to judge. Whether such criminal aims were

pursued secretly by the leadership of the SA can be determined only by

the Tribunal, and only now when the archives have been opened, witnesses

can testify, and the documents are laid open to the Court.

Now, Point 4 of the Prosecution’s definition, if I understood Justice

Jackson correctly yesterday, requires, beyond this, as an element of

crime involving subjective guilt, that the aims and methods of this

organization were of such character that a reasonable, normal man may

properly be charged with knowledge of them.

I should like at this point to emphasize particularly that I, in

agreement with my colleagues, do not consider this definition an

adequate protection, since it means that a member may be punished even

if he did not recognize the criminal nature of the organization but

ought to have recognized it by application of reasonable care. I know of

no system of penal law in any modern civilized state which holds that

negligence, even of a gross or serious nature, is sufficient to

constitute guilt of an infamous common crime, that is, of a crime

belonging to the group of severest offenses. A crime of this category

can be committed only with intention. Perhaps the Prosecution can later

discuss this question on the basis of their knowledge of the particulars

of Anglo-Saxon and other foreign legal systems.

This point seems of particular importance to me because—if it is

neglected—there is the danger that the judges, particularly the

Anglo-Saxon judges, will apply the political standards of their

countries to German conditions. The sober political instinct that is

characteristic of the citizens of England and America is nonexistent in

the Germans. We are a politically immature people, credulous, and

consequently especially susceptible to political misguidance. The Court

should not overlook this dissimilarity when passing its judgment on the

good faith of the individual members of the organizations. According to

the impressions which the Defense of the SA has received to date from

its visits to camps and from numerous letters, the majority of SA

members are convinced that they did not belong to any criminal

organization. Among other reasons are the following subjective ones:

It was generally known and has been specifically stated in the

_Organization Book_ of the Party—Document 1893-PS, Page 365—that only

a person whose character was unobjectionable could join the SA. It is

further stated verbatim, and I quote: “Unobjectionable reputation and no

criminal record.” The members of the SA maintain that they know of no

case in which a gang of criminals or conspirators required in their

statutes similar conditions for membership.

Part of the essence of a conspiracy is the idea that its criminal aims

be kept secret from its opponents. An organization of several millions

is, by its very nature, not suited to carrying out a plot. The leaders

of the SA emphasized in numerous addresses that they wanted to maintain

peace under all circumstances. They pointed out that Germany would be

rather a danger to European peace if she were without defense and arms

in the heart of Europe and that being in a state of preparedness was the

best guarantee for securing future peace in Europe. The simple members

point again and again to the fact that foreign powers gave diplomatic

recognition to the leaders of National Socialism. They consider this

fact not simply an act of “international courtesy” but are convinced

that foreign governments would not have entered into relations with the

German Government if that German Government had consisted of open

criminals.

I might mention a particularly characteristic example: the Indictment

against the SA is substantiated by a number of documents. These are

Documents 2822- and 2823-PS. According to these documents, as early as

May 1933 Lieutenant Colonel Auleb, a deputy of the Reich War Ministry of

that time, was detailed to the high command of the SA in order to assure

liaison between the heads of the two organizations. But the whole affair

is treated as strictly secret, and it is ordered that Auleb should wear

the SA uniform for the purpose of “camouflage.” How, I ask, should or

could a simple SA member have known anything of such affairs? I have

mentioned here only a few points put forward by SA members which, in the

opinion of the Defense, do not constitute unfounded subterfuges, but

which show that the majority of these people never thought of

participating in a criminal conspiracy.

Also the fifth criterion set up yesterday by the Prosecution to define a

criminal organization—the close connection between the main defendants

and the SA—is in the case of no organization so difficult to prove as

in the case of the SA. This may, at first, sound surprising; of the main

defendants here, six were high-ranking members of the SA. Nevertheless,

a closer scrutiny shows that there were no close connections at all.

Except for Göring, none of the main defendants ever exercised command

authority over the entire SA. The rank which these main defendants had

in the SA was an honorary rank; and, so to speak, merely decorative.

Consequently, the Prosecution has mentioned only Göring’s connection

with the SA in its recent list of the criminal elements. But even

Göring’s connection with the SA curiously enough is very slight and is

actually confined to a period of three quarters of a year—that is—9

months, namely, from February 1923 to 9 November 1923, that is to say,

23 years ago. Göring was never, as stated in Appendix A of the

Indictment, Reichsführer of the SA. That is an error. Rather, in

February 1923 Göring was commissioned to take over the command of the

then existing Party group for the protection of meetings—the so-called

Sturmabteilung. Göring led the SA until the November Putsch of 9

November 1923. On that day his command power over the SA came to an end

and was never revived. Later Göring was given by Hitler honorary command

of the unit Feldherrnhalle. He was the honorary commander, not the

active commander of this unit. I believe the difference between honorary

and active command of a regiment is known in all states. I do not have

to give any further explanation. Honorary command has a purely

decorative significance.

The task which the SA had to carry out under Göring in the year 1923 was

the protection of meetings. Anyway, it cannot be charged that at that

time the SA, in co-operation with Göring, already planned the crimes

stated in Article 6 of the Charter or that these aims could have been

anticipated at that time in any tangible form. Neither can it be charged

that Göring ever made use of the SA after 1923 for carrying out any

criminal plan. The man who led the SA from 1930 to 1934, Ernst Röhm, was

an embittered opponent of Göring’s. After his death the SA was led by

Victor Lutze from 1934 to 1943 and from 1943 until its dissolution, by

Wilhelm Schepmann.

According to Article 9, Paragraph 1, of the Charter, an organization can

be declared criminal only in connection with any act of which a main

defendant may be convicted. From a legal and factual point of view I

have the gravest doubts as to whether the facts of the case in 1923, as

described by me, are sufficient to comply with the requirements of the

Charter as far as the SA is concerned. This could be done only if the

Tribunal had reason now to pass sentence on Göring’s activity as leader

of the SA group for protecting meetings 23 years ago, including the

November Putsch, as a special crime. This, however, would be at variance

with the fact that this entire action was settled with legal effect by

the amnesty of the democratic Reich Government, whereby the matter was,

at the time, disposed of in this fashion.

May it please the Tribunal, if it is a fact in the case of any

organization, then certainly it is a fact in the case of the SA, that

its being listed among the criminal organizations is contrary to the

real picture. Large circles abroad, particularly those who were forced

to leave Germany in 1933, knew nothing of the complete change of

structure which the SA underwent during the following years. The foreign

countries heard at every Reichstag session the traditional song, “The SA

Marches,” while, as a matter of fact, the SA had long since lost all

political influence and had been transformed _en masse_ into an

association with a huge membership, the very size of which rendered it

harmless as far as conspiracy was concerned and which showed all the

characteristics of the so-called German club-mindedness. I refer in full

here to the statements made by Colonel Storey, himself, in his speech

for the Prosecution. This is on Page 1546 of the Court’s Record (Volume

IV, Page 138). The organization through which the SA was then eliminated

from political life was, as is well known, the SS, and this happened on

the occasion of the so-called Röhm Putsch in 1934. That, indeed, the SA

and SS always confronted each other like rival brothers is a fact which,

in the interest of truth, should not remain unmentioned. For all these

reasons the SA is judged on a completely different basis, even by German

opponents of National Socialism; and this has already led to

contradictory results, the speedy elimination of which by the

Prosecution or the Court would be highly desirable.

At this opportunity the following facts should be pointed out: The SA,

up to the higher ranks, is not, as a matter of principle, subject to

arrest, which is at variance with probably all the other organizations.

The new denazification law which recently came into force after thorough

consultation between German circles and the Military Government and

which is now the law in force throughout the entire American Zone,

regards all SA members of a rank lower than that of Sturmführer neither

as active Nazis nor much less as criminals. According to the electoral

procedure now in force in the American Zone of Occupation, which

recently was the basis for elections in thousands of German communities

under the directives of the Military Government, the ordinary SA

members, insofar as they were not Party members, were not only permitted

to vote, but were also eligible for election. The same people who are

before the Court accused of serious crimes may at the same time,

according to the law in force, be elected as community councillors, and,

in fact, are being so elected.

I talked personally about two weeks ago to an SA man and asked him

whether, following the notice of the Court, he had reported here for

interrogation. He declared that he saw no reason for doing that, because

in the meantime he had been elected and approved as community

councillor.

The regulations of Law Number 30, regarding the application of the

German community order of 20 December 1945, namely, Articles 36 and 37,

which show that SA men are eligible for election, also confirm the fact,

which is known in Germany, but apparently not in foreign countries, that

an ordinary Party member had—only by comparison, naturally—a more

active political position than the completely uninfluential SA member.

Whoever was a Party member before 1937 cannot vote, and whoever at any

time was a Party member cannot be elected.

A comparison of Party members, who are not indicted here, and SA

members, who are indicted here, shows the following facts:

If at the time of National Socialism one was politically incriminated or

suspected one could, without difficulty, become an SA member but under

no circumstances a Party member, because in regard to Party

membership—and even ordinary Party membership—much higher political

qualifications were required than in the case of SA members. There were

certainly many SA members who joined this organization only to escape to

some extent the persecution they had to expect because of their

incriminating political record in the past.

May it please the Tribunal, I have tried by means of these examples to

show the extraordinary danger existing in the particular case of the SA,

if all its members, including its millions of ordinary SA men, are

legally declared criminals by the Tribunal. I am sorry I cannot share

the opinion expressed yesterday by Justice Jackson that the verdict

sought from this Court would be a purely declaratory one with no

penalties involved. On the contrary I know that hundreds and thousands

of SA members, who were simple followers and were not even Party

members, have been dismissed from their positions, and their future and

their existence will depend on the verdict of this Court. A declaratory

judgment of this Court is sufficient to make them outlaws and to exclude

them from positions and professions in the future. Therefore the members

of the SA are correct in pointing out that they are denied the right of

judicial hearing. There is no direct evidence and no direct trial. A

court does not decide the fate of lifeless creatures of the law or

formal organizations that have long since ceased to exist; it passes

judgment on living human beings, and no court should forego the

opportunity of seeing in person those whom it is trying. A good judge is

always a good psychologist and soon can tell what kind of person is on

trial—whether he is a criminal or somebody who has been deceived and

misled.

No law on earth since time immemorial ever allowed the passing of

judgment against an organization instead of against its single members.

The laws and precedents quoted yesterday by the Prosecution regarding

criminal gangs and conspiracy certainly recognize to a large extent the

collective responsibility for acts of accomplices, but two requirements

must be fulfilled there too: Firstly, the member must know that he is

party to a criminal conspiracy or criminal association; secondly, the

indictment is not directed against the conspiracy as such, and the

conspiracy will not be judged, but the persons of the individual

participants. It is the conviction of the Defense that the Charter did

not intend to stand in contradiction to these legal principles of all

states.

The late President Roosevelt, whom Justice Jackson named the spiritual

father of the Charter, has in his great speeches, particularly in those

of 25 October 1941 and 7 October 1942, stated clearly that the leaders

and instigators shall be called to account. Permit me, Mr. President, to

read two sentences from the speech by President Roosevelt taken from the

official collection, _Speeches and Essays by President Roosevelt_,

published on order of the government of the United States.