16. The SS women auxiliaries.

All these groups, institutions, and suborganizations were under the

administration and jurisdiction of the SS.

By way of summary, the Defense estimate the group of persons indicted as

SS members at several millions. The verdict, however, will also affect

the members of the families of all SS members, at least indirectly, so

that additional millions will be affected personally, morally, and

financially. Since, besides the SS, the mass organizations of the SA and

the Leadership Corps are also indicted, a verdict against the indicted

organizations would amount to a considerable part of the German nation’s

being considered criminal.

According to Law Number 10 of the Control Council, of 20 December 1945,

every member may be subject to any penalty, including the death penalty,

merely because he was a member of an organization which has been

declared criminal.

The question put to discussion by the Court as to what objections can be

made in this collective Trial and what objections can be made later in

the individual trials has, in my opinion, been decided already by Law

Number 10 to the effect that in the individual objections of a

defendant, for example, ignorance of the criminal aims of the

organization, cannot be given any consideration.

It is, therefore, necessary that evidence in this present Trial should

be admitted to the widest extent possible. It should be made possible

for the Defense to rebut, by means of evidence of the factual situation

at the date of the respective act, the conclusions drawn by the

Prosecution retrospectively from individual acts and facts.

When evidence on behalf of the individual defendants was submitted, the

Tribunal declared its readiness to admit evidence if there is only the

slightest degree of relevancy. Considering the significance of the

decision of this Court for the millions of people affected and for their

families, it appears to be an absolutely necessary condition that

evidence be admitted to the largest extent possible in order to permit a

just verdict, to clarify the facts, and especially to find out to what

extent members of the SS participated in any criminal acts according to

Article 6 of the Charter.

To clarify the question of whether it is permissible to conclude from

the fact of the extent of the indicted actions, as maintained by the

Prosecution, that the members of the SS had knowledge of these actions,

it will also be necessary to admit evidence to the widest extent

possible about the question as to whether or not and, if so, to what

extent the members of the SS knew of these actions, as well as evidence

of the facts which prove that the members of the SS, like the majority

of the German people, did not know anything about these matters, owing

to the precautions taken to keep them secret.

The discussions initiated by the Tribunal make it necessary to

anticipate essential parts of the final pleadings. A ruling by the

Tribunal on the question of evidence would at this time signify a ruling

by the Tribunal on an essential part of its future decisions, without

any hearing of the evidence on the objections of the Defense having

taken place. The Charter has a gap, insofar as it has not defined the

facts which qualify an organization as criminal. This gap cannot be

filled by admitting evidence only in a certain direction. By doing so

the Tribunal would anticipate an essential part of its final verdict.

According to what I have said, I believe that it will be necessary for

the evidence to include all elements which might influence the decision

of the question as to whether the organization of the SS was criminal.

This, however, would hardly be possible within the framework of this

Trial which, according to the Charter, is to be conducted as

expeditiously as feasible. Therefore, I consider it necessary to

separate the procedure against the SS and the SD from the trial of the

individual defendants.

On 15 January 1946, partly for other reasons, I made a motion for

separation. As far as I know, no ruling has yet been given. I repeat

this motion as follows:

Judging from the course of the Trial and the procedure up to now, I have

come to the opinion that the Indictment against the organizations of the

SS and the SD—for which I have been appointed Defense Counsel by an

order of the International Military Tribunal of 22 November 1945—and

probably against the other indicted organizations also, cannot be dealt

with within the framework of this Trial for factual and legal reasons.

1. So far as the legal aspect is concerned, I restrict myself to a few

brief points reserving for myself the right to present additional

arguments at a later date:

(a) The International Military Tribunal has no jurisdiction. To this

point I should like to remark that a few days ago I learned from a

newspaper article that the objection of lack of jurisdiction has already

been raised during the session of 20 November 1945 and has been

overruled by the Court. I asked for a copy of the record of 20 November

1945—and also of the following days—but I have not received it to

date. Therefore, I could not take note either of the motion and the

reasons given or of the decision of the Tribunal and its reasons.

(b) A criminal procedure against an organization is not possible or

permissible, especially against an organization which has been

dissolved.

(c) To appoint a Defense Counsel for a dissolved organization, that is,

for something non-existing, is not possible and admissible.

2. As to the facts, I am compelled to make more detailed statements in

support of my motion.

On 19 November 1945 I was told orally that the International Military

Tribunal intended my nomination as counsel for the organization of the

Leadership Corps. After discussion I declared in writing my agreement to

take over the obligatory defense. On 20 November 1945 I was told orally

that I should take over the defense of the organizations of the SS and

SD. On 21 November 1945 I was told orally that I had been appointed

counsel for the SS and SD, and that I would receive the written

appointment very soon. On 23 November 1945 I received the letter of

appointment, dated 22 November 1945, and in the English language, and a

few days later I received the German translation which I had requested.

This letter, in the translation which I received, reads as follows:

“Pursuant to the direction of the International Military

Tribunal you are hereby appointed to serve as counsel in the

case of _United States et al. v. Göring et al._ for the members

of the defendant organizations, the Schutzstaffeln der

Nationalsozialistischen Arbeiterpartei (commonly known as the

SS) and the Sicherheitsdienst (commonly known as the SD), who

may make application to the General Secretary under the order of

the International Military Tribunal attached hereto.”

A few days later a file was handed to me with about 25 letters addressed

to the General Secretary of the International Military Tribunal, partly

from members of the SS and partly from relatives of such members. When I

asked about my position and the position of these applicants in the

Trial, I was told orally that these applications were to be submitted by

me to the Tribunal in proper form.

On 23 November 1945 there was a conference, during which a number of

questions and suggestions were brought up concerning the position and

rights of these members of the indicted organizations, who had applied

for and been granted leave to be heard, and of the defense counsel

provided for them.

From 28 November 1945 until 11 December 1945 I was not able to obtain

the applications filed by members of the SS and SD although I asked for

them several times each day. At that time about 25 applications were

handed to me each day, upon request, and I had to return them in the

evening of the same day. I was told every time that the Tribunal needed

them and that they had not yet been returned. When I received the folder

again on 11 December 1945 the number of petitions had increased

considerably.

By notice of 10 December 1945, according to the German translation which

I received on 11 December 1945, the Tribunal made known its view that a

member of an indicted organization who has applied to be heard on the

question of the criminal character of the organization is not to be

considered a defendant but will have the individual status of a witness

only, although he will be permitted to give evidence; furthermore, that

counsel representing any group or organization may, for this group or

organization, exercise the rights accorded by the Charter to counsel for

individual defendants.

After a closed session of the Court on 11 December 1945, in which

counsel for the indicted organizations also took part, the Tribunal by

notice of 17 December 1945—of which I did not receive a German

translation until a few days later—directed that the respective

counsel, that is, counsel for the organizations, should represent only

the indicted groups and organizations and not individual applicants.

Not until this date was the extent of my duties unambiguously stated and

defined.

THE PRESIDENT: The Tribunal would like to know what your application now

is. The object of this session is to have an argument from Counsel for

the Prosecution and Counsel for the Defense in order that the legal

questions with reference to these organizations should be clear, and

what your personal experience during November and December of 1945 has

to do with it the Tribunal is unable to see.

HERR BABEL: Mr. President, before I started reading this motion, I

pointed out that already on 15 January of this year I made a motion to

separate the procedure, and to my knowledge no ruling has yet been

given. I have tried to repeat in part the reasons for this motion which

I made at the time. If the Court does not think it desirable or

necessary, I shall refrain from doing so.

THE PRESIDENT: I don’t see any relevance in what you have been reading

to us now, either to the question of whether there should be a separate

trial or to any other questions with reference to the criminal

organizations.

HERR BABEL: Mr. President, under these circumstances I shall not read

those further arguments, which may be known to the Court from my written

motion, and I shall come to the conclusion of what I still wish to say.

THE PRESIDENT: Dr. Babel, the Court will, of course, consider the

suggestion which has been made, I think, by other counsel for the

organizations as well as the suggestion which I understand you are now

making, that it is necessary to have a separate trial. The Court will

consider that. But what you have been saying to us does not appear to me

to have any relevance to that.

HERR BABEL: Mr. President, in my former motion I merely wanted to point

out the difficulties I had—since I was still alone and had no

assistance—before I was in a position to devote myself to my real

assignment; for that reason also, in my opinion, my motion for

separating the trial was well founded at that time. Part, or the greater

part, of what I said then has been repeated now. What I have read just

now, and the remainder of my motion, might have more significance today,

but I shall refrain from reading it, since the question of the

separation of the trial has already been brought up and argued by

others. Therefore, for the rest, I can also join in the arguments

brought forward by my colleagues in this regard. In this connection I

should like to point out that on 19 January 1946 I made a motion to be

relieved of the defense of the SD because of conflicting interests.

I believe I ought to call this to your attention as I do not plead today

for the SD, because I have been waiting for a ruling on my motion. I

reserve for myself the right to make further statements after I receive

a copy of the record of 28 February, in particular on the question of

the membership of individuals and groups of persons in the SS, on the

definition of the lines of demarcation between the SS and the

governmental sector, on limitations as to periods and organizations, on

the question of voluntary membership, on limitation of responsibility

for other reasons according to criminal law, and on the jurisdiction of

the SS courts.

In view of the tremendous amount of work which I had to do so far, I

have to this date not yet been able to take a stand on all these points.

I wish to make the remark that the suggestions made by the Prosecution

and several of the Defense Counsel as to the presentation of evidence

seem untenable to me. They would entail a considerable restricting of

the Defense. To carry them out seems to be impossible also for reasons

of time.

This concludes my argument.

THE PRESIDENT: The Tribunal will now adjourn.

[_The Tribunal recessed until 1400 hours._]

_Afternoon Session_

THE PRESIDENT: The Tribunal has decided to alter the order of procedure,

and they will therefore not sit in open session tomorrow but sit in

closed session tomorrow, Saturday; and sit on Monday in order to hear

the applications for witnesses and documents by the next four defendants

in order.

Now, there is another counsel for the organizations to be heard, is

there not?

DR. LATERNSER: The main subject of the discussion which, by request of

the Tribunal, has taken place today and yesterday is the question as to

what is relevant evidence in the case against the indicted

organizations.

As a preliminary question the concept of the criminal organization in

particular must be clarified. Consequently it is not the task of counsel

for the organizations to plead in detail; that should be reserved for

the later final address by Defense Counsel, but rather the subject of

discussion is definitely limited, as far as the Defense is concerned, to

the above-mentioned question of the relevancy of evidence and also to

certain fundamental issues which must be touched upon in order to judge

the relevancy of evidence.

According to the sequence provided by the Indictment, our colleague Dr.

Kubuschok spoke first as defense counsel for the Reich Government. In

his address he dealt with the general issues in compliance with Point

Number 1 of the decision of the Tribunal of 14 January 1946. In order to

avoid unnecessary repetition, I should like to make the legal arguments

of my colleague Kubuschok, to their full extent, part of my own

argument. At the same time I submit the request that the Tribunal pay

particular attention to the contents of these arguments presented

yesterday.

With regard to the definition of the concept “criminal organization,” I

should like to make a few short remarks and additional statements. It is

obviously a well-considered provision of the Charter that the Tribunal

can declare the indicted organizations criminal; it is thus not obliged

to do so but can exercise its free and conscientious judgment.

If the Tribunal comes to the conclusion that the declaration of the

group as criminal can or has to lead to impossible, untenable, and

unjust consequences, then the rejection of the Prosecution’s demand

would as a matter of course be mandatory.

It has already been stated by those who have just spoken what grave

legal consequences would result, as far as the members are concerned,

from a declaration of the criminality of the groups and how the

undoubtedly vast number of innocent members would also be affected by

that declaration. As far as these consequences for the members are

concerned, it cannot be emphasized strongly enough that all the members

of the groups and organizations will be affected directly by a

declaration of criminality, insofar as by the verdict of the Tribunal it

would irrefutably be established that they are accused of a crime,

namely, the crime of having belonged to a group or organization which

has been declared criminal. That this membership is a crime already

follows clearly from Articles 10 and 11 of the Charter. In Article 10 it

is stated that the competent courts of the individual occupation zones

have the right to put all members on trial because of their membership

in groups or organizations which have been declared criminal.

It is further enacted that in those trials the criminal nature of the

group or organization shall not be questioned. Thus, the members can be

indicted because of membership in the group or organization; and, if

every indictment before a court can, of course, deal only with a crime,

then it is already established that membership in the group or

organization is a crime. Furthermore, in Article 11 of the Charter

membership in a group or organization declared criminal is specifically

designated a crime. That follows from the very words of the article,

which reads: “. . . with a crime other than of membership in a criminal

group or organization. . . .”

In the same way in the law of 20 December 1945, issued to implement the

Charter, membership in a group or organization declared criminal is

specifically declared a crime. Consequently the finding of the criminal

character of the group or organization by the Tribunal will state with

immediate effect that all members, because of their membership in the

group or organization, have committed a crime, and this must necessarily

lead to untenable consequences.

It is not correct to say that these members can exculpate themselves in

the subsequent trials before the individual military courts. If mere

membership in the organization is defined as a crime, they can take

exception to the charged guilt only by declaring that they were not

members of the group or organization.

If Justice Jackson is of the opinion that in the subsequent trials they

could plead that they had become members under duress or by fraud, the

admissibility of this plea nevertheless seems to be highly questionable.

Justice Jackson himself pointed out that a plea of personal or economic

disadvantages cannot serve as grounds for duress. What other kind of

duress could be considered relevant? According to German criminal law

only physical coercion would be left for consideration, and that only

for the period of its duration. In this case also fear of personal or

economic disadvantage is no ground for exculpation as far as remaining

in the group or organization later on is concerned.

Thus a member of a group or organization declared criminal has in the

subsequent trial only the possibility of pleading certain extenuating

circumstances which might influence the degree of penalty. The question

is now whether, according to the principles of justice, these inevitable

consequences are tolerable; so far as innocent members are concerned,

this question can be definitely answered only in the negative.

Justice Jackson is further of the opinion that there probably are no

innocent members of the organizations concerned, because it is simply

incomprehensible to sound common sense that anyone joined the indicted

groups or organizations without having known from the very beginning, or

at least very soon after, what aims and methods these groups and

organizations were pursuing.

This point of view may appear comprehensible to the retrospective

observer, after the crimes charged to the groups and organizations have

collectively been brought to light. That the mental attitude of the

members to the aims and tasks was or could have been entirely different

at that time cannot be doubted by anyone.

If one were to subscribe to Justice Jackson’s interpretation, then the

provision of Article 9 of the Charter providing for a hearing of members

on the question of the criminal character of the organizations would

make no sense at all. It would then be entirely superfluous to admit any

sort of evidence in respect to this, and it would furthermore be

unnecessary to discuss the criminal character, as the Tribunal itself

has suggested.

If we follow the Prosecutor’s line of thought that, according to sound

common sense, it is obvious that all the members took part in the crimes

mentioned in Article 6 of the Charter, then the provisions regarding the

Common Plan or Conspiracy would suffice altogether as grounds for

prosecuting and punishing these members who, without exception, are to

be considered guilty. In this case the structure of the declaration of

criminality and the stipulation of its consequences would in no way have

been necessary.

From the following deliberation it is to be inferred that the

declaration of the criminality of the organizations is not necessary and

can be dispensed with altogether.

Justice Jackson declared that, of course, no one intended an indictment

of the innumerable members of the groups and organizations, which would

result in a flood of trials which could not possibly be dealt with in

one generation. What will be done is to seek out and find only those who

are actually guilty and have them brought to trial.

Thus it is not in any way necessary to create such a large circle of

members through the declaration of criminality and to select the guilty

from this circle. This selection can take place without creating this

circle. That in a group or organization of many members there were

obviously a number of innocent members is a fact of common experience

which cannot be disputed, and this thought is taken into consideration

not only by the Charter, but also by the Prosecution in that they want

to exempt from one of the organizations the category of those with

low-grade routine tasks, obviously because of the conviction that these

had nothing to do with crimes, for otherwise they would have been

members of or participants in the criminal conspiracy.

Besides this category, however, a number of other members come into

consideration whom one cannot speak of as guilty in the legal sense of

the term; for instance, those people who did not give any thought at all

to the aims of the group. All these people would of necessity not only

be dishonored by a declaration of the criminality of the group or

organization but, if indicted, would also be punishable because of mere

membership. Incidentally it might be mentioned that eventually their

economic existence would be menaced or destroyed because of their

membership in the group or organization and the defamation brought about

by the declaration of criminality.

But again it must be asked whether all these consequences have been

weighed and can be justified in view of the basic principle of all

criminal law systems, according to which only the guilty are to be

punished, and in view of the principle of substantive justice. That

ought to be answered in the negative all the more if these members who

would necessarily be affected by the verdict of the Tribunal were not

granted any legal hearing in this Trial.

It has already been pointed out that granting a legal hearing to the

vast majority of the members is unfeasible for technical reasons. Thus

the unique situation arises that the Tribunal would pass verdict on all

those members without knowing whether or not numerous innocent members

would be affected thereby.

If Justice Jackson further pointed out that the issue under dispute is

nothing new, but can be found in the penal codes of all other states and

in particular also in Germany, this view likewise can in no wise be

supported. The German laws and precedents quoted are of a character

entirely different from the structure of the Charter.

In Germany, as in almost all other states, the punishment of groups and

organizations is not known at all, only the punishment of individuals is

known. No German judgment has yet been passed by which a group or

organization as such was subjected to penalty or was declared criminal.

It is very well possible, though, that in the trials against members of

criminal organizations the criminal character of the organization was

stated in the opinion. This statement, however, had effect only on the

convicted members and not on other members who were neither indicted nor

convicted.

The provisions quoted of Articles 128 and 129 of the German Penal Code

are provisions which corroborate exactly the view of the Defense,

because they threaten only the participants in an illegal association

with penalties and not the association itself. Also, the French laws

quoted deal merely with the threat of punishment for participation and

membership in certain associations with punishable pursuits. A

possibility for declaring the association itself criminal is not to be

found in these legal sources either.

The French Prosecutor quoted, first of all, Articles 265 and 266 of the

Penal Code. The first provision forbids the forming of associations with

a punishable pursuit; the second subjects only the participants to

penalty. Likewise, the French law concerning armed groups and private

militia, of 10 January 1936, provides only for the punishment of the

participants. The same is true of the other law quoted, that of 26

August 1944, which provides only for individual responsibility. None of

the above-mentioned laws allows the punishment of organizations.

Consequently, they can support only the legal view of the Defense.

If in England and America—as exceptions—associations as such can be

punished, that can be done only on account of certain groups of offenses

and only to the effect that either the dissolution of the corporation

may be pronounced or fines imposed. Naturally in such proceedings it is

a necessary condition for the Prosecution and the Defense that the

corporation as such be represented during the proceedings by its

functionaries and representatives and be able to defend itself; whereas

in this Trial the groups and organizations as such are summoned before

the Court, although they do not exist any longer and although their

functionaries are absent.

It has never been the case in any country that groups and organizations

are declared guilty or criminal and that on the basis of this

declaration of the Court all members of the groups or organizations can

be or must be indicted and punished because of their mere membership.

This is the completely novel and odd feature which stands in contrast to

the existing law of any country.

I believe it is permissible to say that neither England nor America

would ever be willing to pass such a law for their own population. If

all this proves that the declaration of criminality demanded must

automatically result in grave and completely untenable consequences as

demonstrated, then the demand of the Prosecution should be denied in the

name of justice. The Charter, which in no way obliges the Tribunal to

make such a declaration, would also not be violated thereby. In this way

an injustice which could only injure the integrity of the judgment of

the Tribunal in the eyes of our contemporaries and of posterity would be

avoided.

My arguments lead to the following conclusion:

1. The Tribunal should, because of the legal arguments presented, as a

matter of principle, refuse to declare any group or organization

criminal; it is within the Tribunal’s power to do so.

2. If this is not done, the concept of the criminal organization must be

so defined that the innocent members are protected from serious

consequences. This can be done only by means of a definition, as

suggested yesterday by my colleague, Kubuschok. Accordingly, those

subjects of evidence proposed by him should also be admitted if they are

not _a priori_ irrelevant because of the fact that, for legal reasons,

the Prosecution’s demand of a verdict against the groups and

organizations cannot be granted. It is necessary that the following

additional evidence be admitted for the group of the General Staff and

the OKW, which I represent:

(1) The group included under the designation “General Staff and OKW” is

not such a group and is not an organization. My explanation of this

subject of proof is as follows:

(a) Justice Jackson is of the opinion that the concept of “group” is

more comprehensive than that of “organization,” that it does not have to

be defined but can be understood by common sense. To this I must object

that those who occupied the highest and the higher command posts

represent the heads of a military hierarchy as it is to be found in

every army in the world. There was no relationship whatsoever evident

among the members of this group. Nor can such relations be assumed

merely because of the official connections between the various offices

or because of the channels which actually existed. Moreover, since the

circle of people whom the Prosecution wish to include in this group is

admittedly composed in a completely arbitrary way, simply on the basis

of official positions occupied within a period of 8 years, there is no

evident tie which could justify the assumption of the existence of a

group. But to form a group it is absolutely necessary to have some

connecting element in addition to the purely official contact between

offices.

(b) Aside from the Chiefs of the General Staffs of the Army and the Air

Force, none of the individual persons in the group belonged to the

General Staff. The German General Staff of the Army and the Air

Force—the Navy had no admiral staff—was headed by the Chief of the

General Staff and consisted of the General Staff officers who acted as

operational assistants to the higher military leaders. For these reasons

the designation or name given by the Prosecution to this fictitious

group under indictment is false and misleading as well.

(2) The following subject of evidence, in addition to those advanced by

my colleague, Kubuschok, should be admitted for the group of the General

Staff and OKW: The holders of the offices forming the group did not join

a group voluntarily, nor did they remain in it voluntarily. The

admission of this subject of evidence is necessary for the following

reasons: Justice Jackson stated yesterday that joining a group, or

membership in it, must be voluntary. This condition is not present in

the case of the group which I represent. The vast majority of the

indicted higher military leaders had come from the Imperial Army and

Navy; all of them had served in the Reichswehr long before 1933. They

did not join any group, but were officers of the Armed Forces and got

their positions, which they were not at liberty to choose, only on the

basis of their military achievements. They also were not at liberty to

withdraw from these positions without violating their duty of military

obedience.

(3) All evidence is to be admitted which refers to the charge against

the group of the General Staff and the OKW as contained in the summary

of arguments. Evidence on these points could be presented in the

following way:

(1) A number of people concerned should make sworn affidavits from the

contents of which conclusions could be drawn regarding the typical

attitude of a certain number of those involved. (2) Some typical

representatives of the group ought to testify before this Court about

the subjects of evidence submitted. (3) Every other sort of evidence

having some probative value should be admitted to the extent necessary.

We request that this evidence should be admitted at present to a full

extent for the time being without prejudice to a subsequent decision on

the weight of this evidence, just as Justice Jackson suggested the same

thing on 14 December 1945 with regard to the evidence offered by the

Prosecution, for at present a binding decision on the relevancy of the

evidence offered cannot be reached.

Whether this evidence is necessary at all and whether or not and to what

extent it is relevant depends on the following: (1) Whether the

Tribunal, following the arguments of justice and fairness as submitted

and by authority of the power given it, will decline to declare these

groups and organizations criminal. (2) Or, if this is not done, in what

way it defines the concept of criminal groups and organizations. These

two points cannot be definitely decided at present, since there is still

a great deal to be said about these thoroughly difficult and significant

and completely novel problems, as well as about the impressive address

delivered by Justice Jackson. One of my colleagues has undertaken to

work out a comprehensive memorandum on all these problems and questions

which will be ready in about two or three weeks. I request that

additional arguments pertaining thereto be reserved for me and my

colleagues at that time.

One last point: The Tribunal ought also to reach a ruling as to what is

to be done about the last word for the organizations.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal would be glad to hear

you in reply.

MR. JUSTICE JACKSON: I think there is not much that I care to say in

reply, but there are one or two points which I would like to cover. It

has been suggested that there be a separation of the trial of the issues

as to the organizations from the Trial now pending. I think that is

impossible under the Charter. I think the Trial must proceed as a unit.

Of course, it is possible to take up at separate times different parts

of the Trial, but the jurisdiction conferred by Article 9 for the trial

of organizations is limited.

It is at the trial of any individual member, of any group, _et cetera_,

that this decision must be reached and it must be in connection with any

act of which the individual may be convicted. So I think that any

separation, in anything more than a mere separation of days or

separation of weeks of our time, is impossible.

I find some difficulty in understanding the argument which has been

advanced by several of the representatives of the organizations that

there would be some great injustice in dishonoring the members of these

organizations or branding the members of these organizations with the

declaration of criminality. I should have thought that if they were not

already dishonored by the evidence that has been produced here, dishonor

would be difficult to achieve by mere words of the declaration. It isn’t

we who are dishonoring the members of those organizations. It is the

evidence in this case, originating largely with these defendants, that

may well bring dishonor to the members of these organizations. But the

very purpose of this organizational investigation is to determine that

part of German society which did actively participate in the

promulgation of these offenses and that those elements may be condemned;

and, of course, if it carries some discredit with it, I think we must

say that the discredit was not originated by any of our countries; the

dishonor originated mainly with those in this dock, together with those

whom the fortunes of war have removed from our reach.

There seems to be some misunderstanding as to just what we mean, or at

least we do not agree as to what is to be meant by treating these

organizations as generally voluntary. The test which has been advanced

by the counsel for the organizations would, it seems to me, completely

nullify any practicable procedure.

Now let us contrast the Wehrmacht and the SS to get at what I mean by

regarding an organization as generally voluntary. The Wehrmacht was

generally a conscript organization, but it may have had a good many

volunteers in it. I do not think we would be justified, because there

were volunteers, in calling the Wehrmacht a voluntary organization. The

SS, on the other hand, was generally a voluntary organization, but it

did have some conscripts, and I do not think it would be any more just

to carry the SS into the class of conscript organizations because of a

few members than it would to classify the Wehrmacht as _voluntary_

because of a few members. In other words, in neither case would we be

justified in allowing, as we might say, the “tail to wag the dog.” It is

a question of the general character of the over-all organization that

decides what these organizations are.

Now, of course, if the Tribunal saw fit to say that its declaration was

not intended to apply to any groups, sections, or individuals who were

conscripts, that is one thing. I have no quarrel with that. From the

very beginning I have insisted that of course we were not trying to

reach conscripts. But if you sit here week after week determining who is

a conscript and just where that principle leads, that, I think, would be

quite apart from what we ought to do here.

A great deal of argument is addressed to the fact that proof is

lacking—or that here should be stronger proof—that these

organizations’ real criminality was known to the members; and the

inference seems to be that we must prove that every member—or, at

least—that we cannot hold members who did not know this criminal

program on the part of these organizations. I think this gets into a

question, perhaps, of the sufficiency of proof rather than one of

principle, but it seems to me again that we have the common sense

division.

If someone organized a literary society for the study of German

literature and accumulated some funds and had a home, a house, and some

of the defendants became its officers and secretly diverted its funds to

a criminal purpose, while all the time to the public it was presenting

only the appearance of being a literary society, it might very well be

that a member should not be held unless we proved actual knowledge. Or,

if a labor union, ostensibly for the purpose of improving the welfare of

its members, has its funds or properties or the prestige of its name

diverted by those who happened to gain control of it to criminal

purposes, then you have a situation where the members might not be

chargeable with knowledge.

But when I speak of knowledge sufficient to charge members, as I did, I

do not mean the state of mind of each individual member. That would be

an absurd test in any court of law. In the first place, it is never a

satisfactory thing to explore the state of mind of an individual; and,

in the second place, it is impossible to explore the state of mind of a

million individuals. So we might as well drop this from consideration,

if that were to be the test.

But let us look at this over-all program. How did these few men who were

the heads of this Nazi regime kill 5 million Jews, as they boast they

did? Now, they didn’t do it with their hands; and it took disciplined,

organized, systematic manpower to do it. That manpower wasn’t casually

assembled. It was organized, directed, and used. Can the killing of 5

million Jews in Europe be a secret? Weren’t the concentration camps

known in every one of our countries? Were they not a byword in every

land in the world—the German concentration camps—and yet we have to

hear that the German people themselves had no knowledge about it.

Our public officials were protesting against the slaughter of Jews

diplomatically and in every other way, and yet we are told this was a

secret in Germany. The name of the Gestapo was known throughout the

world, and there isn’t a man among counsel who would not have turned

white if, in the night at his door, someone rapped and said he was

representing the Gestapo. The name of that organization was

known—unless we are to assume that it was singularly secret in Germany,

but known to the rest of the world.

That sort of thing bears on this question of what men who joined these

organizations ought to know. There was no declared and ostensible

purpose of the SS, SA, and several of these organizations, except to

carry into effect the Nazi program. They would make themselves masters

of the streets.

The story is all in the evidence, and I won’t go on to repeat it. The

program was an open, notorious program, and these were the strong-arm

organizations. So it seems to me that we get down to the situation

where, as Chief Justice Taft once said to the Supreme Court of the

United States on a somewhat similar question: “We as judges are not

obliged to close our eyes to things that all other men can see.” And

this was notorious and open.

It is a little hard, if Your Honors please, for an American patiently to

listen to the arguments made here again and again, that there is some

plan here to punish with death penalties or extremely severe penalties

people who innocently got caught in this web of organizations. If there

were the slightest purpose to go through Germany with death we wouldn’t

have bothered to set up this Tribunal and stand here openly before the

world with our evidence. We were not out of ammunition when the

surrender took place, and the physical power to execute anyone was

present.

These powers have voluntarily, in their hour of victory, submitted to

the judgment of this Tribunal the question of the criminality of these

organizations. And it seems to me a little trying on the patience of

representatives of those powers to be told that in back of this is some

purpose to wreak vengeance on innocent people. I think it is difficult

for those who have survived this Nazi regime to understand how reluctant

we are to kill any human being. It is a commentary on the state of mind

that survived this Nazi regime, rather than upon us.

Control Council Act Number 10—I don’t know whether Your Honors have

copies of that—Control Council Act Number 10, does make membership in

the categories which may be convicted a crime, and I think it ought to.

It ought to be sufficient to bring before a Tribunal inquiring into the

detail of each individual any individual as a member, and that is all

that we have here in a declaration, in substance, an indictment which

enables you to put the individual on trial.

It is true that the punishment may include a death penalty, and so long

as the death penalty is imposed by any society for anything, the penalty

of death ought to follow in some of these cases; the SS men who were

responsible for the destruction of the Warsaw Ghetto, for example, or SS

men who are shown to have been responsible for the top planning, even

though they did not actually participate.

But I call your attention to the fact that in Provision Number 3 of Act

Number 10 the slightest penalties are also provided. The restitution of

property wrongfully acquired is one of the penalties that may be

imposed. The deprivation of some or all civil rights is another. And

during this period of reconstruction of German society, those minor

penalties may very well be imposed upon people who entered into these

organized plans. If not, you have the situation that the people who

organized themselves to force this Nazi program, first on the German

people and then on the world, are treated exactly the same as the German

who was the victim of it. Now, isn’t it our duty as occupying powers of

a prostrate country to draw some distinction between those who organized

to bring on this catastrophe and those who were passive and helpless in

the face of overwhelming power?

Counsel for one of the defendants has already shown that, in

administering the affairs, an SA man has been made a councillor in one

of the districts. There is no purpose, because a man happened to get

into the SA, to take his life or to take his property or to condemn him

to hard labor for life. There is a purpose to have the basis for

bringing these people in for what the military people call a “screening”

and find out what kind of people they are and what they have been up to.

This Control Council Act—while I am frank enough to say I would not

have drafted it in the language it is drafted in—this Control Council

Act leaves, in the first place, discretion as to whether prosecutions

will take place, in the hands of the occupying powers. I do not share

the fears of counsel that millions—I have forgotten how many millions

it was estimated—would be brought to trial. I know that the United

States has worries enough over manpower to bring to trial 130,000, so we

do not want to bring to trial millions. And it is for that reason that

we have consented to the exclusion of some of these categories where it

seemed we could exclude them very safely without jeopardizing the

over-all program of dealing with these people.

Now, I want to make clear why it is that we do not want to go, in this

Trial, into this question of each of these many subdivisions of these

Nazi organizations and the functions of each. You have heard some of

them named. They are innumerable. Some of them existed a short time and

then disappeared.

The trial of each of these subdivisions would take—I would not venture

to say how long. We do not want to see this Court trivialized. This is

not a police court. This was not set up to be a police court; and this

is a police court function, after this Court has laid down the general

principles, to take up the case of individuals or of many individuals

and to determine whether they are within or outside the definition.

I do not know whether a mounted group of SS men are any less dangerous

than an unmounted group. I had always associated the equestrian art with

warfare, but I do know it will take a long time to determine it.

I do not know whether SS motorcycle mounted traffic officers are less

dangerous than those who do not have motorcycles, or were less criminal,

but I should have a suspicion that the greater the mobility, the more

active the group was in carrying out these widespread offenses.

I do not know about the physicians. I do not think it is up to us to try

it in this case, but I suspect that a medical corps meant there might be

some casualties; and this thing isn’t innocent on its face, as it

appears. This will require a great deal of evidence, if we go into each

of these things, and it seems to me that it would be out of keeping with

the character of this Tribunal to go into that kind of question.

It is not necessary to go into the group any more than it is the

individual, and if you go into the group I know of no reason why you

should not go into the individual, because if the group is within the

general contour, each one member of that group is entitled to his

hearing before he is condemned. It may very well be that the occupying

authorities will decide that the whole group is not worth prosecuting.

We have no illusions about this thing. We are never going to catch up

with all the people who are guilty, let alone prosecuting the innocent.

If they are prosecuted, however, it may very well be that the group

would be treated together in some way, so that there could be a single

determination as to each group.

In any event, since each individual has to have a hearing, there can be

no point in having a hearing for subgroups between the individual and

the principal organization that we ask to have declared guilty.

If there were any point in our fully trying this question and deciding

just who is in and who is out of the circle of guilt, there would be no

reason why the Charter would not have given you power to sentence. There

would be no reason for further trials.

It seems to me that we must look at this matter somewhat in the light of

an indictment. It is true it is an accusation against all members of the

group. It has no effect unless it is followed by a trial and a

conviction, any more than an indictment that is never followed by a

trial would have effect. The effect of the declaration is that the

occupying power may bring these individual members to trial.

Administrative considerations will enter into it—the degree of

connection. It may very well be that it will be decided that those who

were mere members and not of officer rank of any capacity should not be

punished. We cannot say just what will be necessary.

Frankly, I do not know just what manpower is going to be available for

the United States’ part in the follow-up of these trials. There are

difficulties which I do not underestimate, but I do know that the idea

that this means a wholesale slaughter or a wholesale punishment of

people in Germany is a figment of imagination and is not in accordance

with either the spirit of this Trial or the purpose of the Charter.

I think that is all that I care to say unless the Tribunal has some

question, which I will be glad to answer.

THE PRESIDENT: Mr. Justice Jackson, there are one or two questions I

should like to put up to you.

First of all, in your submission, do the words in Article 11 have any

bearing, the words at the end of Article 11, where it is provided that

“such court”—in the last three lines—“may, after convicting him,

impose upon him punishment independent of and additional to the

punishment imposed by the Tribunal for participation in the criminal

activity of such groups or organizations.” Do the words “for

participation in the criminal activity of such groups or organizations”

add anything to the definition of the word “membership“ in Article 10?

MR. JUSTICE JACKSON: I do not think they add anything. Frankly, the

wording of this article has bothered me as to just what it does mean,

since no punishment is imposed by this Tribunal at all for participation

in the activities of the group. The purpose of the language was to make

clear that the punishment for an individual crime, if one committed a

murder individually or was guilty of aggressive warfare planning, is not

to interfere with the punishment for being a member of a criminal

organization or _vice versa_, to make clear that they are not mutually

exclusive. But the language I am not proud of.

THE PRESIDENT: Secondly, would an individual who was being tried before

a national court be heard on the question whether, in fact, he knew of

the criminal objects of those groups?

MR. JUSTICE JACKSON: Well, I think he would be heard on that subject,

but I do not think it would be what we in the United States would call a

complete defense. It would perhaps be a partial defense or mitigation. I

should think that the tribunal might well—the court trying it—might

well have felt that he should have known under the circumstances what

his organization was, despite his denial that he did not; and that his

denial, if believed, will weigh in mitigation rather than in complete

defense. In other words, I do not believe that you can make as a

decisive criterion of guilt the state of mind of one of these members

where you have no power whatever, no ability whatever, to controvert his

statement of that state of mind. I think you have to have some more

objective test than his mere declaration.

THE PRESIDENT: Then I understood you to say that it was not for the

Tribunal to limit or define the groups which were to be declared

criminal; but, as the Charter does not define them, isn’t it necessary

for the Tribunal to define what the group is?

MR. JUSTICE JACKSON: I think it is necessary for the Tribunal to

identify the groups which it is condemning, sufficiently so that it

would afford a basis for bringing the members to trial for membership. I

do not think it is necessary to define the exact contours of guilt. It

is defined in reference to membership rather than in terms of guilt or

innocence. That is to say, it may be that there is some little section

of the SS that on trial would be said to be not guilty of participating

in the crimes of the organization. I do not think it is up to this

Tribunal to take evidence, because if you take evidence as to some you

must as to all, to separate out those elements. The SS is a well-known

organization. Its contour is easily defined by membership, and within

those contours it does not seem to me necessary to make exceptions.

THE PRESIDENT: But if there were to be an essential distinction on the

question of criminality between the main body of the SS and, for

instance, the Waffen-SS, would it not be the duty of the Tribunal to

make that distinction?

MR. JUSTICE JACKSON: I do not think that would be necessary. I think

when the member was brought to trial—one may be a conscript and still

have remained in on a voluntary basis, or he may have gone beyond his

duty as a conscript. I do not think it is necessary at this stage of the

proceeding, where the individual is not here, to eliminate him. I do

think that the principle that acts performed under conscription are not

within the condemnation of the Tribunal is quite a different thing.

THE PRESIDENT: Is it possible for this Tribunal to limit the powers of

the national courts under Article 10 by either defining the group or

giving a definition of the word “membership” in Article 10?

MR. JUSTICE JACKSON: Well, if Your Honor pleases, I think every tribunal

in its judgment has a right to include, in its judgment, provisions

which will prevent its abuse. And I do not think this Tribunal is

lacking in power to protect its decision against distortion or abuse. I

take it that is the question rather than the question of if the national

courts brought these persons to trial and paid no attention to the

declaration—I do not suppose that there would be any power in this

Tribunal to stop them from doing it. But I assume you mean as a

consequence of this declaration, and I think that the declaration can be

circumscribed or limited. I certainly would insist that the Court had

inherent power to protect its judgment against abuse.

THE PRESIDENT: Do you think this Court could direct the national court

to take any particular defenses into consideration?

MR. JUSTICE JACKSON: I do not know that it could put it in just that

way, but I suppose it could define the categories in a way that the

declaration would not reach any except those included within it. In

other words, I think the declaration that this Tribunal will make is

within this Tribunal’s control. When you get away from the declaration,

I think you would have no control over the national courts. But insofar

as they relied on the declaration, you would have power to control the

effect of the declaration, provided the effect was not inconsistent with

the provisions of the Charter.

THE PRESIDENT: You did, I think, make some suggestions for obtaining

such evidence as you thought was necessary. Do you wish to add anything

to that?

MR. JUSTICE JACKSON: I have nothing to add to that, Your Lordship. I

realize that the defendants’ counsel have great difficulty in getting

evidence, great difficulty in communication. I have it myself—great

difficulty in getting letters delivered, great difficulty in all of

these things. But I will state to this Tribunal categorically—I do not

know what camp it is that was referred to yesterday as substantially

refusing counsels’ application to see their clients—but so far as the

American Zone is concerned, counsel, if they are properly cleared to go

there, will be given every facility to get every kind of evidence that

is available in that camp. If they are there at mealtimes they will be

fed, and if they are there at night they will be sheltered. We will put

everything in their way to help them that is possible.

Of course, there are security problems involved, and counsel cannot just

walk into a camp and make himself at home. He will have to be cleared in

advance so that he meets the security requirements; but there is no

purpose to obstruct, and there is every purpose to assist.

THE PRESIDENT: Thank you.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I should like to ask you

a few questions. Some of them will be somewhat repetitious of what the

President has already said. You will excuse me if I repeat one or two of

those. Most of them are directed for the purposes of this argument,

which, I take it, is to form some kind of definition of the

organizations, which may, of course, not be final but will at least give

us a view of what should be relevant to the defendants’ making up their

cases. So the questions are addressed to that, rather than any ultimate

theory of definition.

You said that you would suggest excluding clerks, stenographers, and

janitors in the Gestapo. Well, now, if we accepted that, would we not be

obliged to exclude such categories from other criminal organizations?

MR. JUSTICE JACKSON: Not at all, Your Honor. I think there is a

difference between a concession by the Prosecution and the necessity for

the Tribunal’s making a decision.

It might appear logical that if we conceded clerks, stenographers, and

janitors of the Gestapo were not to be included, that no clerks,

stenographers, or janitors should be included. It does not follow. The

relationships in different organizations differ.

From what we know about the Gestapo situation, we are satisfied that

clerks, stenographers, and janitors in that organization ought not to be

included, and we do not want to waste any time on it.

THE TRIBUNAL (Mr. Biddle): Was the reason for that, that those clerks

would not have had knowledge of what was going on in the Gestapo?

MR. JUSTICE JACKSON: I do not think either that they had sufficient

knowledge, in general, to be held or that they had sufficient power to

do anything about it if they did.

Now, this question of dealing with minor people—and it is one of the

questions that the Court inevitably gets into, if it undertakes to draw

these lines itself rather than letting them be drawn administratively by

what we choose to prosecute—is illustrated by just this sort of thing.

One of the difficulties with the Court is that it tries to be logical,

and ought to be logical perhaps. I have always thought that was the

great merit of the jury system, that juries do not have to be, and in

prosecuting we do not have to be. It may look illogical to exempt small

people in one organization and not in another, but there were

differences in them.

For example—I think it is in evidence; if not, it will be—it was

pointed out at one meeting by the Defendant Göring that chauffeurs to

certain officers had profited to the extent of half a million Reichsmark

from Jewish property that they had gotten their hands on. Now, I suppose

ordinarily you would say that a chauffeur for an official was not a man

who had much discretion and not a man who was expected to know much

about what his employer was doing, but you have a great deal of

difference in their relations to these men.

So far as I am concerned, I want to make perfectly clear—and I think it

will be assumed—the United States is not interested in coming over here

3,500 miles to prosecute clerks and stenographers and janitors. That is

not the class of crime, even if they did have some knowledge, that we

are after, because that is not the class of offender that affects the

peace of the world. I think there is little reason to fear that that

sort of person—unless there is some reason to feel that some guilty

connection exists beyond merely performing routine tasks—will be

prosecuted in as big a problem as we have on hand here.

THE TRIBUNAL (Mr. Biddle): But in spite of that, you would include them

in the SS, let us say?

MR. JUSTICE JACKSON: I would not exclude them.

THE TRIBUNAL (Mr. Biddle): I take it that would include them.

MR. JUSTICE JACKSON: If they were members, they would be included; if

they were merely employees, that is something different; but if they

took the oath and became a part of the SS organization, I think they

stand in a different relation to the employed clerks of a government

agency.

THE TRIBUNAL (Mr. Biddle): Now, somewhat along those same lines, you

stated, in trying to define what a criminal organization was, that its

membership must have been—I am quoting your words—“generally

voluntary” and its criminal purpose or methods open and notorious and

“of such character that its membership in general may properly be

charged with knowledge of them.”

Now I am going to ask you a question which is somewhat repetitious of

what the President asked you, but perhaps you can specify a little more.

Would it not be inconsistent with that test which you suggest for

criminality, if we decline to consider whether any substantial segment

of the organization—I mean a section or segment might comprise a third

of the whole organization or even more, like the Waffen-SS within the

general SS—was either conscripted, which is one test, or ignorant of

the criminal purpose? Because if such a substantial segment could be

shown to be innocent under these tests, would it not be necessary either

to decline a declaration on that ground—that the criteria were not

generally satisfied as to the accused organization—or else to exclude

the innocent segments from the deposition of the criminal organization?

Now, that is a rather involved question but it seems to me, if the test

is the knowledge or assumed knowledge, that evidence that a very large

segment did not and probably could not have had knowledge would be

relevant and would be relevant not only for the purposes of evidence,

but for the purposes of definition?

MR. JUSTICE JACKSON: Well, I think you have at least two ideas in the

question that must be dealt with separately. The first is that

conscription and knowledge, to my way of thinking, present a very

different problem.

As to conscription, as I said before, I think, if the Tribunal saw fit

to condition its judgment not to apply to conscripted members of any

organization, I shall have no quarrel with it. I have always conceded we

did not seek to reach conscripted men. If the overwhelming power of the

state puts them in that position, I do not think we should pursue them

for it.

If the Tribunal says that the Waffen-SS must be excluded because it was

conscripted, that raises a question of fact.

THE TRIBUNAL (Mr. Biddle): Yes.

MR. JUSTICE JACKSON: And it raises a question of fact that we would be 3

weeks trying and that is what I want to avoid, because there were

Waffen-SS and other Waffen-SS and there were different periods of time

and there were different conditions; and we get into a great deal of

difficulty if we undertake to apply the principle that the conscript is

not to be punished; and that, it seems to me, is what is properly left

to the future course, the question as to whether an individual or a

number of individuals comes within that principle. In other words, I

think this Court should lay down principles and not undertake what I

call “police court administration” of those principles as applied to

individuals.

THE TRIBUNAL (Mr. Biddle): May I interrupt you for a moment on the first

point? I take it, then, that you would think it appropriate to express a

general limitation with respect to conscription in the declaration, but

not to designate to whom that applies?

MR. JUSTICE JACKSON: I would have no objection to such a designation as

far as I am concerned. Now, the other question is a question of

knowledge, which is infinitely more difficult. We do not want to set up

a trap for innocent people. We are not so hard up for somebody to try

that we have to seek and to catch people who had no criminal purpose in

their hearts; but there can be no doubt that every person affiliated

with this movement at any point knew that it was aimed at war and

aggressive war. There can be no doubt that they knew that these

formations under the Nazi Party were maintaining concentration camps to

beat down their political opposition and to imprison Jews and the

terrible things that were going on in these camps.

To ask us to prove individual knowledge or to ask us to accept the man’s

own statement of his state of mind is to say that there can be no

convictions, of course. It seems to me that the scale of this crime and

the universality of it, going on all over Germany, concentration camps

dotting the landscape, and the vast population, is sufficient to charge

with knowledge the principal organizations of the Nazi Party which were

responsible for those things. The test that I think applies as to

knowledge is not what some member now on the witness stand may say he

knew or did not know; but what, in the light of the conditions of the

times, he ought to have known—what he is chargeable with.

THE TRIBUNAL (Mr. Biddle): Wouldn’t it follow from that that there was

no taking of any evidence on what was generally known?

MR. JUSTICE JACKSON: Well, I think the proof of what was going on

establishes the point as to chargeability with knowledge.

THE TRIBUNAL (Mr. Biddle): Do you claim that the defendants should not

be permitted to give any evidence as to that which was generally known

with respect to what was going on?

MR. JUSTICE JACKSON: To what was generally known, I do not think the

defendant’s denial that he knew what was going on has any materiality.

THE TRIBUNAL (Mr. Biddle): That was not my question. My question was

whether a witness could be permitted to testify that the acts of the

particular organizations were not generally known to its members. Would

you exclude that evidence?

MR. JUSTICE JACKSON: I certainly would, and if I heard it I would not

believe it; but perhaps my . . .

THE TRIBUNAL (Mr. Biddle): Excuse me. Although on your test of

knowledge, you wouldn’t permit the defendants to meet that test?

MR. JUSTICE JACKSON: I should say that that is just exactly the

situation, that the Court would take judicial notice, from the evidence

that is in, that this was a thing that must have been known in Germany;

and I would not think that it would be permissible for a citizen of the

United States to testify that he did not know the United States was at

war, a fact of which he is chargeable with knowledge; and it seems to me

that the magnitude of these things is so equally established and the

repeated daily connection between the organizations and this criminal

program is so equally clear.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I only have two or three

more questions. One is directed to the General Staff. Does the

particular date when an individual accused—I beg your pardon—when an

individual assumed one of the commands listed in Appendix B of the

Indictment have any bearing on whether he is a member of the

organization? Now, I am going to bring that question down to the General

Staff.

MR. JUSTICE JACKSON: Perhaps I should warn you of this—that I am not a

military man. I have not specialized on that subject and I shall want to

refer your question to someone whose knowledge is more reliable than

mine.

THE TRIBUNAL (Mr. Biddle): I shall ask the question directed to you as a

lawyer and not an expert in military matters. Assume that one of these

individuals became an army group commander after the wars of aggression

had been planned, proposed, initiated—roughly, that would be after

1942; let us say, after Pearl Harbor—and had reached the stage when

Germany was on the defensive; is his acceptance of a command at that

date sufficient to make him a member of the organization?

MR. JUSTICE JACKSON: I should think it would.

THE TRIBUNAL (Mr. Biddle): The reason I asked you that, Mr. Jackson, is

that I thought you had rather indicated in your opening address that the

starting of the war was the essence of the crime rather than the waging

of war, and I was wondering whether in that case there would be any

difference which we should consider?

MR. JUSTICE JACKSON: Well, I think when one joins, he ratifies what has

gone before, and it would seem to me that when he came into the picture

at that point, it was a ratification of all that had gone before on the

ordinary principles of conspiracy.

Now I think it is a difficult question, whether a man had not had any

prior connection with the Nazi Party—if you take the example of a man

who disapproved all that the Nazi Party had done, who never became a

member of it, who stood out against it and publicly his position was

clear, and he took no part in the war until the day his country was

being invaded and he said, “I don’t care what happened before; my

country is being invaded and I shall now go to its defense,” I would

have difficulty convicting that man. I do not know such a man.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, there is only one more

question I should like to address in connection with Law Number 10. I am

a little puzzled myself on Law Number 10, the Control Council Law of

December 20—I think that was the date. You spoke of one reason for

declaring the organizations criminal and bringing persons into the

Control Council for screening. I take it they can do that easily without

any help on our part.

MR. JUSTICE JACKSON: That is right.

THE TRIBUNAL (Mr. Biddle): Now, you said something very interesting. You

said the act would not have been so, if you would have drafted it. How

would you have drafted it, if that is not an improper question?

MR. JUSTICE JACKSON: Well, I think I would not have made these penalties

of this act apply to all of the crimes. You have one lumping of a whole

list of crimes which, to my mind, range from the very serious to the

very minor. Then you have applicable to all of those crimes, penalties

from death down to deprivation of the right to vote in the next

election.

THE TRIBUNAL (Mr. Biddle): For instance, you would not have made the

death penalty applicable to the members of the SA who might have

resigned in 1922?

MR. JUSTICE JACKSON: I would not; and I think that in that way I would

have been more explicit with the penalties. Like the Mikado, I would try

to make the punishment fit the crime, rather than leave it wide open.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, what defenses do you

think are expressly permitted under the Control Council Law? Don’t we

have to assume that the members of the Tribunal will permit certain

defenses or are any defenses expressly permitted?

MR. JUSTICE JACKSON: No; no defense is expressly permitted. I take it

that any defense which goes to the genuineness of membership, as the

volition of the individual, duress, fraud—and by duress I mean legal

duress—I do not think that the fact that it is good business, that the

man’s customers may leave him if he does not join the Party—that is not

duress; but anything which goes to the genuineness of his membership.

THE TRIBUNAL (Mr. Biddle): Only one more question. If the Tribunal were

of the view that a declaration of criminality of the organization is an

essentially legislative matter, as suggested by some of the defense

lawyers, rather than a judicial one—if we were of that view, would it

be appropriate for the Tribunal to consider the legislative authority of

the Control Council, to make such a declaration, which undoubtedly we

could do in exercising that discretion which is conferred on us under

Article 9 of the Charter?

MR. JUSTICE JACKSON: I would not think so, Your Honor. I think that this

Tribunal was constituted by the powers for the purpose of determining on

the record—after hearing the evidence, after knowing the

facts—determining what organizations were of such a character that the

members ought to be put to trial for membership.

The fact that some other group which does not have hearing processes and

which is not constituted as this might, either administratively or some

other way, reach that same result, I do not think is a proper

consideration. I should think it was rather a way of avoiding the

duty—there are other ways of doing it, but this is the way our

governments have agreed upon. I should think it would not be a proper

consideration.

Of course, you could punish these members without anything. We have them

in our power and in our camps. But our governments have decided they

want this thing done after a full consideration of the record, and in

this matter I think that. . .

THE TRIBUNAL (Mr. Biddle): But you have no doubt of the power of the

Control Council to do it, irrespective of what we do, do you?

MR. JUSTICE JACKSON: I do not know of any limitations on the power of

the Control Council. There is no constitution. It is a case of the

victor and the vanquished, and I think that is one of the reasons why,

however, we should be very careful to observe the request of our

governments to proceed in this way. In a position where there was no

restraint on their power except their physical power, and mighty little

of that today, they have voluntarily submitted to this process of trial

and hearing, and it seems to me that nothing should be done, by us as

members of the legal profession at least, to discredit that process or

to avoid it.

THE TRIBUNAL (Mr. Biddle): Those are all the questions I have to ask.

THE TRIBUNAL (Professeur Donnedieu de Vabres, Member for the French

Republic): I would like to ask Mr. Jackson a few details on the

consequences of the declaration of the criminality of an organization.

Suppose an individual belonging to one of the organizations classified

as criminal—for instance, an SS man or a member of the Gestapo—is

brought before the military jurisdiction of an occupying power.

According to what has been said so far, he will be able to justify

himself by proving that his membership in the group was a forced

membership. He was not a volunteer and if I have understood correctly,

he will also be able to justify himself by proving that he never knew of

the criminal purpose of the association. That, at least, is the

interpretation which has been adopted and defended by the Prosecution,

and which we consider exact.

But I suppose that the tribunal in question has a different conception.

I suppose that it considers the condemnation of the individual who was a

member of the criminal organization, obligatory and automatic. Strictly

speaking, the interpretation which has been advocated by Mr. Jackson is

not written in any text. It does not appear in the Charter.

Consequently, by virtue of what texts would the tribunal in question be

obliged to conform to this interpretation?

MR. JUSTICE JACKSON: The control of the future tribunal is the control

of the effect of the declaration of this Tribunal. This Tribunal’s

effect, when brought before a subsequent tribunal, is defined by the

Charter, and it has only the effect that the issue as to whether the

organization is criminal cannot be retried. There could be no such thing

as automatic condemnations, because the authority given in the Charter

is to bring persons to trial for membership.

It would, of course, be incumbent on the prosecutor on ordinary

principles of jurisprudence to prove membership. I think proof that one

had joined would be sufficient to discharge that burden, but then the

question could be raised by the defendant that he had defenses, such as

duress, force against his person, threats of force, and would have to be

tried; but the Charter does not authorize any use of the declaration of

this Tribunal except as a basis for bringing members to trial.

THE TRIBUNAL (M. De Vabres): If I am not mistaken, the authority of the

International Military Tribunal will be imposed on the respective

jurisdictions of the states, and will oblige them to adopt the

interpretation in question. But in that case I conclude that, in the

opinion of the Chief Prosecutor, Mr. Jackson, the judgment of the

International Military Tribunal, the judgment which we shall pass, will

have to contain a precise definition of this subject. Mr. Jackson said,

however, a few moments ago, in agreement I think with Mr. Biddle, that

the statute of the Charter permits us to define a criminal organization.

Our judgment would not only contain a determination of the groups which

we consider criminal, but also a definition of a criminal organization;

and in the same way there would be precise definitions concerning the

cases of irresponsibility, for example, the case of forced membership.

There would be precise definitions which the tribunals of the respective

states would be forced to respect. Do I understand Mr. Jackson’s thought

correctly?

But, in that case, the question I ask is the following, and it is

somewhat similar to that of Mr. Biddle: Briefly, would it not mean

conferring on our judgment a certain legislative character? We are not

an ordinary court, since we are adopting provisions, such as the

definition of a criminal organization, which are generally included in a

law, and at the same time our judgment contains provisions which limit

the cases of individual responsibility. That is to say, in brief, we are

to a certain extent legislators, as it was argued yesterday.

MR. JUSTICE JACKSON: I think that is true, that there is in this

something in the nature of legislation or of the nature of an

indictment. You may draw either analogy. But I do not see anything about

that, as I understand it, which complicates the problem. In the United

States we have a strict separation of legislative from judicial power,

but there is nothing in that matter which controls this Tribunal, and

whether you draw the analogy of an indictment in which you are accusing

by your finding, your declaration, or whether you draw the analogy of

legislation, it would be equally valid as the act of the Four Powers,

since they are not required to withhold any power from the Tribunal.

THE TRIBUNAL (M. De Vabres): Yes, yes. The question which I have just

asked seems to be of theoretical interest only. This is, however, the

practical consequence which I should consider, which I should be tempted

to draw, and on which I would like to hear your opinion:

If we have some legislative power, in that we are able to limit the

indicting of persons and admit causes of irresponsibility or excuses,

does this absolutely exclude our limiting at the same time the

punishment?

Earlier, Mr. Biddle and Mr. Jackson were considering Article 10, and Mr.

Jackson expressed some criticism concerning the penalties, which are not

individualized penalties, since they can extend as far as the death

penalty, as far as capital punishment.

There are, of course, some crimes for which capital punishment seems

justified, such as Crimes against Humanity. But is it not going too far,

to consider imposing the death penalty as the maximum for a crime which

in France would perhaps be considered purely “material”—the crime of

belonging to a criminal organization? Would it not be too severe for us

to impose the death penalty? And might not the International Military

Tribunal be forced to reduce unduly the notion of a criminal

organization, precisely because we consider the possibility of this

penalty being too severe? In other words, does Mr. Jackson absolutely

exclude for the International Military Tribunal the power to fix a

penalty, or at least a maximum penalty, for the crime of belonging to a

criminal organization?

MR. JUSTICE JACKSON: I should not think that it was within the proper

sphere of the Tribunal to deal with the question of penalties, for the

reason that no power to sentence anyone other than the defendants on

trial is given to this Tribunal; I mean, no power to sentence for

membership in the organizations. Therefore, I think no incidental power

to control penalties is given, but the power to declare an organization

criminal does, incidentally, confer power to determine what that

organization is, and I have not been disposed to question the power of

the Tribunal to carry that definition to great detail, although I would

question the wisdom of it.

The power, however, of sentence for membership is not even remotely

conferred upon the Tribunal, and I would think that that would be a

rather drastic expansion of its power.

THE TRIBUNAL (M. De Vabres): Those were the only questions I wished to

ask.

THE PRESIDENT: We will adjourn for 10 minutes.

[_A recess was taken._]

THE PRESIDENT: Sir David, did you want to add a reply or did you come in

order that we might ask you some questions?

SIR DAVID MAXWELL-FYFE: First, if the Tribunal will allow me, there are

three or four points on which I should like to add a word.

The first point that Dr. Kubuschok made was that the procedure of asking

for a declaration against the organizations was objectionable for two

reasons: First, because it was founded on the limited phenomenon in

Anglo-Saxon jurisprudence, that a corporation may be convicted in

certain limited spheres; and secondly, that the organizations were in

fact dissolved some time ago.

I think it is important to stress that that is not the legal conception

which underlies this portion of the Charter. It is really based, in my

submission, on a doctrine found in most systems of law, either _res

adjudicata_ or the conception of the judgment _in rem_ as opposed to the

judgment _in personam_. That is, that it is in the general and public

interest that litigation on a particular point should not be

interminable, and that, if the appropriate tribunal has come to a

decision on a point of general interest and importance, that point

should not thereafter be litigated many times.

It is the essential view of the Prosecution here that this Tribunal,

having had the advantage of evidence dealing with the whole period and

functioning of the Nazi conspiracy, is the appropriate and, indeed, the

only suitable tribunal for deciding the question of criminality. It is a

prospect which would be quite impracticable and beggars the imagination

as to time to consider that every military government or military court

should decide one after the other the question of criminality of great

organizations like these. And therefore we have in the Charter adopted

the procedure that that preliminary question will be decided once and

for all by this Tribunal.

The fact that the organizations have been administratively dissolved is

irrelevant. What is important is, what was the nature of the

organizations when they did function? And that is the issue which the

Tribunal has to determine. And we submit and indeed say that it is a

clear implication, if not indeed expressly within the words of Article

9, that it must be at the trial of the individual defendants that the

question of this criminality should be decided, and we say that apart

from considerations of practicality the wording of Article 9 is a clear

guide against separation of these issues as suggested by two or three of

the Defense Counsel.

I only want to add one word about what has been said on the argument on

Law Number 10. Dr. Kubuschok made the point that this procedure really

acted entirely against the individual. There are at least two answers:

The first, which I have endeavored to give, as to the legal concept

behind the idea of a declaration, and the second, the one which has been

canvassed before the Tribunal, as to the rights of defense. May I say

that, in my submission, membership in an organization is a question of

fact and therefore these defenses of duress, fraud, or mistake—to take

three examples—must clearly be permissible and good defenses on that

question of fact. The third is that every document such as the

Charter—the same would apply to every piece of legislation—always

contemplates intelligent and reasonable administration in carrying out

its requirements, and it would be, in my submission, idle to take the

view that where you have a permissive enactment like Law Number 10—and

it is clearly permissive as to prosecution—intelligent administration

should prosecute every one who could be prosecuted under the act.

In our candid proverb, hard cases make bad law; and in my submission, it

would be wrong to decide or interpret on an extremely unlikely hard

case.

I want, if I may, to say just one or two words on the argument so

interestingly put forward by Dr. Servatius and mentioned a few moments

ago by the learned French judge.

In my submission there is no legislative function for this Tribunal

whatsoever. There is a clearly judicial function, and I want to make it

quite clear; I do not qualify it by “quasi-judicial” or any

qualification at all. It is a simple judicial duty. The first portion of

that duty is to define what is criminal. In my submission, as Mr.

Justice Jackson argued yesterday, that presents no difficulties. It

occurs in Article 9, three articles after Article 6, and “criminal“ in

that context means an organization whose aims, objects, methods, or

activities involved the committing of the crimes set out in Article 6.

When “criminal” has been defined, it is a matter of judicial weighing of

evidence to decide whether there is evidence of these crimes being

committed by the organization or being the aim or object of the

organization, as I have stated. But I respectfully ask the Tribunal to

hesitate long before it accepts the argument of Dr. Servatius that this

Tribunal should decide the interpretation of “criminal” on its own _a

priori_ basis, to use Dr. Servatius’ own words, of politics and ethics.

That would be introducing a new, dangerous, and unchartered factor into

the Trial. There is, in my submission, a clear line of guidance for the

judicial approach, and nothing in the Charter to support the _prima

facie_, unexpected idea that a body established as a tribunal should

delegate to itself legislative powers.

Again, if I may add just one word as to the conclusions which Dr.

Kubuschok drew on the question of criminality as a ground for deciding

the relevancy of evidence, his first conclusion was that the

organization in question, according to its constitution or charter, did

or did not have a criminal aim or purpose.

I accept, of course, the test of aim and purpose, but I do not accept

the limitation as to charter or constitution. The criminal aim or

purpose may be shown by the declarations or publications of the leaders

of the organizations, and also, as I submitted, by its course of conduct

in method and action. I agree with Dr. Kubuschok that aim or purpose is

the first test, but I do not agree with his limitation as to

establishing it.

His second point was that crimes under Article 6 were not committed

within or in connection with the organization or were not committed

continuously over a period. The first part of that would seem fairly

clear, that, if the crimes were not committed within or in connection

with the organization, the organization is obviously in a very favorable

position. But I first answer the second part by saying that it does not

come into the picture of this case that there is any instance of

isolated crimes with regard to every organization. The crimes alleged

are, in fact, spread over the period alleged in the Indictment, but I

suggest that the adoption of such a criterion does not really help. One

comes back to the first point of Dr. Kubuschok, that aims or purposes,

as disclosed by declarations, methods, or activities, are the primary

and most important tests.

Then, the third point that Dr. Kubuschok made was that an appreciable

number of members had no knowledge of the criminal aims or of the

continuous commission of crimes. I endeavored to stress, as did Mr.

Justice Jackson, that the Prosecution’s test is constructive knowledge.

That is, ought a reasonable person in the position of a member to have

known of these crimes? And that really is the answer, in my respectful

submission, to the relevancy of individual knowledge of one particular

member.

It is only too true that during the period under discussion a very large

number of people made a habit of sticking their heads in the sand and

endeavoring to abstain from acquiring knowledge of things that were

unpleasant. In my respectful submission, that sort of conduct on the

part of a member would not help him at all, and the only answer to that

is to adopt the test which we have suggested: Ought a person in that

position reasonably to have known of the commission of the crimes?

Dr. Kubuschok’s fourth point is that an appreciable number of members or

certain independent groups joined the organization under compulsion or

illusion or superior orders. Shortly we answer that by saying that that

is only relevant to the defense of an individual member in the

subsequent proceedings, and, of course, it is only a defense where he

can show that he has taken no personal part in the criminal acts.

Then, the last point which Dr. Kubuschok made was that an appreciable

number of members were honorary members. Again we say that that is only

relevant to the defense of the individual member, and it does not really

alter or increase the defenses open to him.

The only other point of Dr. Kubuschok’s which I do think requires

mention is that in considering how evidence could be presented, he said

that certain rights of defense are universal. The first of these which

he claimed was direct oral testimony, and he said that each individual

defendant should have this right. He then admitted that that was

practically impossible and suggested as a solution that we must typify,

that is, that representatives of groups in the various camps should make

affidavits showing what percentage took part in criminal actions or knew

about them.

I want to point out to the Tribunal that it is expressly laid down in

the Charter that members of the organization are entitled to apply to

the Tribunal for leave to be heard, but the Tribunal shall have power to

allow or reject the application. As a point of construction no less than

of sense, there would have been no point in giving the Tribunal the

power to reject the application, if it were implicit that everyone

should have the right to be heard.

The answer is that the Tribunal has complete discretion to decide what

line and what course shall be taken to procure the evidence. The

Prosecution, through Mr. Justice Jackson, has indicated that it makes no

objection to any reasonable form of collecting relevant evidence. What

the Prosecution objects to is evidence being tendered on the issue

before the Tribunal which is only relevant to the question of individual

innocence or guilt of the member.

My Lord, I could have dealt, and indeed was prepared to deal, with a

number of points raised by the other Counsel for the Defense. I hope

they would not think that it is any disrespect to their arguments that I

have not dealt with them, but I know that the Tribunal wishes to ask

certain questions, and I do not want to trespass on that time. I only

want to deal with one point, because it kills with one stone two birds

that have flown against our argument in this case.

It will be remembered that when I dealt with the SA yesterday, Dr.

Seidl—and I am sorry he is not here—raised the question that the

Defendant Frank was not a member of the SA; and Dr. Löffler, in dealing

with the SA today, raised the question that its activities no doubt did

not really extend after 1939, and not importantly after the purge in

1934.

I find an interesting quotation from the semi-official publication, _Das

Archiv_, for April 1942, and as it is very short and deals with these

points I venture to read it to the Tribunal, so that it may appear on

the record. At Page 54 it says:

“SA Unit, Government General. At the order of the Chief of Staff

of the SA, there took place the foundation of the SA unit,

Government General, whose command Governor General SA

Obergruppenführer Dr. Frank took over.”

I only quote that to finish my argument to show, as indeed all the

evidence shows, that with regard to the SA, no less than any other of

the organizations, the Prosecution have provided evidence of crimes

reaching over the period which they have stated.

I deliberately have cut out anything further that I might say, My Lord,

because I do not want to shorten unduly the time, if the Tribunal wishes

to ask me any questions.

THE PRESIDENT: I think there is only one question that I should like to

ask you. As I understand it, you say that the Prosecution have proved

facts from which one must conclude that every reasonable person who

joined any of these organizations would know that they were criminal.

SIR DAVID MAXWELL-FYFE: Yes.

THE PRESIDENT: You would agree, would you not, that proof of any fact

which went to contradict the facts from which you have presumed

knowledge of criminality could be proved by the Defense?

SIR DAVID MAXWELL-FYFE: Certainly. If the Defense sought to prove, to

take an extreme example, that the conduct of the SS with regard to,

first of all, concentration camps and, secondly, killing Jews and

political commissars on the Russian front, was done in such a way,

despite the vast territory over which these crimes have been proved to

have been carried on, was done in such a way that nobody knew about

it—if there was relevant evidence on that point, then they could call

it, on the general point that it was not a matter of imparted

constructive knowledge, but of memory.

THE PRESIDENT: I only asked you that question because there were certain

observations by Mr. Justice Jackson, which did not seem altogether to

accord with the answer which you have just given.

SIR DAVID MAXWELL-FYFE: I think that, as I understood Mr. Justice

Jackson, he was saying that it might not be relevant to prove that one

member did not know of the crimes, and I thought that our two approaches

really did fit in with each other.

THE PRESIDENT: Yes.

THE TRIBUNAL (Mr. Biddle): I take it then, Sir David, that you would say

that evidence with respect to general knowledge by any very substantial

segment of an organization would be relevant, would it not?

SIR DAVID MAXWELL-FYFE: Well, I think it would be relevant if it were

not absurd. I mean, a disclaimer of knowledge of certain acts may be so

absurd that the Tribunal should not take the time of inquiring into it.

THE TRIBUNAL (Mr. Biddle): That would apply to any evidence, of course.

But my point was: You have said that evidence with respect to general

knowledge over a whole organization would clearly be relevant.

SIR DAVID MAXWELL-FYFE: Certainly.

THE TRIBUNAL (Mr. Biddle): And now I ask you whether that would be true

with respect to any substantial segment of an organization such as the

Waffen-SS.

SIR DAVID MAXWELL-FYFE: I am trying to relate it to the practical

position. That is where I find it very difficult.

Now, to take your example, it is difficult to imagine. Let us take four

divisions that were very well known: the Totenkopf, the Polizei, Das

Reich, or the 12th Panzer Division. I should have thought that, as a

matter of discretion, if it were sought to show that these divisions,

about which there is so much evidence as to their participation in

crime, did not know of the crimes, the Tribunal would be right in

rejecting that.

THE TRIBUNAL (Mr. Biddle): Well, the question would come up more whether

the acts of the members of certain divisions were known generally

throughout the whole Waffen-SS, would it not?

SIR DAVID MAXWELL-FYFE: With the greatest respect, I find it very

difficult to see how the knowledge or absence of knowledge of a

particular division in the Waffen-SS could affect the question of

criminality of the SS as a whole.

THE TRIBUNAL (Mr. Biddle): Well, again, I am not asking you as to

knowledge in a particular division; I am asking you as to general

knowledge, throughout the entire Waffen-SS, of the acts of a particular

unit.

SIR DAVID MAXWELL-FYFE: Well, if someone is prepared to say, “I knew

every division of the Waffen-SS, and in my opinion no one in the

Waffen-SS had any knowledge or had any opportunity of knowing of the

crimes,” then the evidence would be admissible. Its weight would be so

negligible that, I should submit, it would not detain the Tribunal long.

But I concede that if someone is prepared, laying the proper ground for

his evidence, to say, “I can speak; I have the grounds for and the

opportunity of speaking on the general position,” then I do not see how

the Tribunal could exclude it.

THE TRIBUNAL (Mr. Biddle): The matter is very practical because we have

to advise Counsel for the Defendants what material they can introduce,

and do that very soon.

SIR DAVID MAXWELL-FYFE: Certainly.

THE TRIBUNAL (Mr. Biddle): Now let me ask you a few other questions.

On what basis, Sir David, do you contend that the Reich Cabinet was a

criminal organization as of January 30, 1933, when, if I remember

correctly; there were only three members of the Nazi Party who were in

the Cabinet: Göring, Hitler, and Frick? Do you think that if three out

of a very much larger number, some twenty odd, could be said to be part

of a criminal organization, that makes the entire Cabinet criminal?

SIR DAVID MAXWELL-FYFE: Certainly, on the facts. It must be remembered

that Hitler had refused to take office as vice chancellor during the

months before that, before the date that you put to me. He had refused

on the ground that, as vice chancellor, he would not be in a position to

carry out his Party program. On that basis the Defendant Von Papen and

Hitler negotiated, and Hitler came into power on the 30th of January. It

is the case for the Prosecution that those who formed part of that

Cabinet knew that they were forming part of a cabinet in which Hitler

was going to work out his program, as has been declared on so many

occasions. That is the first point. Secondly, it is the case for the

Prosecution that the Defendant Von Papen did join in introducing the

Nazi conspirators into the Government with that knowledge and with the

purpose of letting them have their way in Germany. And the same must

apply—it has not been investigated to the same extent, because they are

not defendants—to the industrialists and the Party, who were acting

with them in the Cabinet. They must be taken to have known, just as

Gustav Krupp knew and supported, just as Kurt von Schröder knew and

supported, the aims of the Nazis whom they introduced and co-operated

with in the Government.

Thirdly, the personalities of the Nazis in the Government—Hitler

himself, and the Defendants Göring, Frick, and Dr. Goebbels, who I think

became Propaganda Minister either at the same time or very shortly

afterwards—show that these people, they have shown it by their acts,

were not persons to take second place. They introduced at once the

Führerprinzip into operation in the states, and these other people in

the Cabinet at that time accepted the Führerprinzip and united in

placing Hitler and the Defendant Göring and the other conspirators in

the position of power and authority which enabled them to carry out

their monstrous crimes that are charged against them.

I will give you one other reference. It was within a few months of that

period that the Defendant Schacht became Plenipotentiary for War Economy

and began the preparations for the economic side of the creation of

Germany’s war potential.

For all these reasons I submit that the actions of the Reich Cabinet at

that date were deliberate. The same applies to the Defendant Von

Neurath; it is the whole case of the Prosecution, as to the case against

Von Neurath, that he sold his respectability and reputation to the Nazis

in order to help them buy with that reputation and respectability a

position of power in Germany, with the conservative circles in Germany,

and with the diplomatic circles in Europe with whom he came in touch.

For all these reasons, Your Honor, I submit that the Reichsregierung at

that time was thoroughly infected with the criminality which we suggest

in this case.

THE TRIBUNAL (Mr. Biddle): In relation to the political leaders, let me

ask you this, Sir David:

In your opinion, would it be necessary to establish the responsibility

of political leaders of lower grades to show that, as a group, they were

informed of plans to wage aggressive war or to commit War Crimes or

Crimes against Humanity? In other words, I take it there is some

obligation to show that information. Does that rest simply on the fact

that these crimes were being perpetrated, or is there any evidence of

that information?

SIR DAVID MAXWELL-FYFE: There is evidence—and if I might just indicate

the kind of evidence there is—on the first stage of the acquisition of

totalitarian control in Germany, which is the first stage in the

conspiracy, that is, apart from the Party program, there are the

extracts from the Hoheitsträger magazine. You remember, Hoheitsträger

are all the political leaders. On the anti-Semitic part of that there

are documents, which are Exhibit USA-240 (Document Number 3051-PS) and

Exhibit USA-332 (Document Number 3063-PS), which are shown in the

transcript at Pages 1621 and 1649 (Volume IV, Pages 47 and 66). On the

question of war crimes against Allied airmen you will remember that a

document was circulated to Reichsleiter, Gauleiter, Kreisleiter, with

instructions that Ortsgruppenleiter were to be informed verbally with

regard to the lynching of Allied airmen. That document is Document

Number 057-PS, shown in the transcript at Page 1627 (Volume IV, Page

50). And that the hint was taken by at least one Gauleiter is shown by

Document L-154, Exhibit USA-325, at Page 1628 (Volume IV, Page 51).

Then, there is a Himmler order to senior SS officers, to be passed

orally to the Gauleiter, that the police are not to interfere in the

clashes between Germans and aviators. That is Document Number R-110,

Exhibit USA-333, shown at Page 1624 (Volume IV, Page 49). Then there is

a declaration by Goebbels inciting the people to murder Allied airmen,

which is shown at Page 1625 (Volume IV, Page 50). Similarly, with regard

to foreign labor, there is a telegram from Rosenberg to the Gauleiter

asking them not to interfere with the confiscation of certain companies

and banks.

There is Jodl’s lecture to Reichsleiter and Gauleiter at a later stage.

There is an undated letter from Bormann to all Reichsleiter and

Gauleiter, informing them that the OKW had instructed guards to enforce

obedience of prisoners of war refusing to obey orders, if necessary,

with weapons.

THE TRIBUNAL (Mr. Biddle): Sir David, if I may interrupt you for a

moment. I was familiar with the evidence with respect to the Gauleiter

and Reichsleiter. My question, you will remember, was addressed to the

lower levels, the Blockleiter.

SIR DAVID MAXWELL-FYFE: Well, I think one can summarize it that even as

far as lower levels are concerned you have the four points: You have

_Mein Kampf_, the _Party Program_, _Der Hoheitsträger_, and the fact

that conferences were constantly held throughout the organization.

As I say, I have dealt with the evidence on the Jews, the lynching of

Allied airmen, and I think I mentioned the letter from Bormann to the

Reichsleiter, Gauleiter, and Kreisleiter about assisting in increasing

the output of prisoners of war. And there is an instruction from Bormann

down to the Kreisleiter about the burial of Russian prisoners of war.

There is a decree for insuring the output of foreign workers that goes

down towards the Gruppenleiter.

All these matters are in evidence, and we submit that there is

particular evidence on practically every point. And on the general

point, as I said, you have these publications, coupled with the evidence

that conferences were held, apart from the general Führerprinzip which

would, and did, make the Zellenleiter and the Blockleiter the final

weapon in order to ensure that the people acted in accordance with the

leader’s wishes.

THE TRIBUNAL (Mr. Biddle): Let me ask you just two questions, and then I

will finish with regard to the SA. Would you say that a member of the SA

who had joined, let us say, in 1921, and resigned the next year, was

guilty of conspiring to wage aggressive war and guilty of War Crimes?

SIR DAVID MAXWELL-FYFE: Yes, in this sense. If I may recall, I answered

a question that you were good enough to put to me a day or two ago as to

when the conspiracy started. A man who took an active and voluntary part

as a member of the SA in 1921 certainly, in supporting the Nazi Party,

was supporting the published program of the Party which had the aims

which you have just put to me.

That is certainly put clearly in Article 2 of the Party Program as the

getting rid of the dictate of Versailles and the Anschluss, getting the

Germans back to the Reich, which, of course, is only a polite way of

saying destroying Austria and Czechoslovakia.

Therefore, that man had these aims in view.

With regard to War Crimes, I respectfully repeat the answer that I put

to you the other day, that it was an essential tenet of the Nazi Party

that they should disregard the life and safety of any other people who

stood in the way of the securing of their ambitions. A person who

deliberately joins an organization with that aim, and with that aim

getting more and more clearly related to practical problems as week

succeeded week, was taking part in a first essential step of involving

mankind in the miseries that we have seen; because it is that tenet,

applied to every facet of human life and human suffering, which has

caused the crimes which this Tribunal is investigating.

THE TRIBUNAL (Mr. Biddle): Well, I can see how you might say that with

respect to conspiracy in War Crimes, but I want to be perfectly clear

also that you say, on the substantive crime of committing War Crimes,

that a man joining the SA in 1921 and leaving in 1922 would have

committed those War Crimes in the beginning of 1939.

SIR DAVID MAXWELL-FYFE: If you put to me the substantive War Crimes, I

respectfully remind you that under Article 6 the last words are:

“Leaders, organizers, instigators, and accomplices participating

in the formulation or execution of a Common Plan or Conspiracy

to commit any of the foregoing crimes are responsible for all

acts performed by any person in the execution of such a plan.”

Under the Charter, in my respectful submission, that is enough to make

them responsible for the crimes.

THE TRIBUNAL (Mr. Biddle): Now only one other question. What do you

contend was the function of the SA after the Röhm purge?

SIR DAVID MAXWELL-FYFE: The function was still to support all Nazi

manifestations in the life of Germany. You remember that Dr. Löffler was

careful to except—very frankly and fairly he excepted the 10th of

November 1938. The SA—and I gave another example how they were formed

in the Government General—we have also given examples, which I think

you will find in my appendix, of the participation—limited

participation, but still a participation—in the War Crimes and Crimes

against Humanity.

But the main point of the SA after that time was to show that here were

3 million people who had come into the organization which had provided

the force to bring the Nazis into power, and it had the forceful size

needed to bring the Nazis into power in those days. They were then

joined by 2½ million people, which brought their numbers up at that time

very high. They went down again later on, but they were high in 1939,

and they provided a great immoral force behind the Nazi Party. They

provided strong support and were ready on all occasions; whenever a

demonstration had to be staged, the SA were there to give their support.

They were an essential instrument for maintaining the Nazi control over

the German Reich.

THE TRIBUNAL (Mr. Biddle): I take it, then, that the function, in your

opinion, did not change in substance after the purge? Would you say

that?

SIR DAVID MAXWELL-FYFE: The aim did not change. It did not need to do

half as much, because, of course, by the end of 1933 all the other

political parties were broken. Part of the SA’s original task, as I

think Dr. Löffler put it, had been to safeguard the Defendant Göring

when he was making a speech—I should have put it that it was to prevent

the other people from having a free run when they made speeches—and to

deal with the clashes between the various groups. That was unnecessary,

because all political opposition had been destroyed. Therefore they

became rather—I forget the exact term—a sort of cheer leader or a

collection of people who would always be ready to give vociferous

support.

You must have heard, Your Honor, of the meetings coming over the

wireless with regulated cheers. It became more supporting, rather than

dealing with opposition, but essentially the aim was the same, to keep

the grip.

THE PRESIDENT: Dr. Dix, it is now nearly quarter past 5. Do you think

that this discussion can be closed this evening before 6 o’clock?

DR. RUDOLPH DIX (Counsel for Defendant Schacht): Mr. President, I

believe I can finish in 5 minutes.

THE PRESIDENT: All right. Do the other prosecutors wish to add anything?

GEN. RUDENKO: I would like to make a few short remarks, Mr. President.

THE PRESIDENT: How long do you think you will be, General Rudenko?

GEN. RUDENKO: I think about 10 minutes; no more.

THE PRESIDENT: Does the French prosecutor wish to add anything?

THE TRIBUNAL (M. De Ribes): I have nothing to add.

THE PRESIDENT: Dr. Dix, what I really want to know is whether there is

any prospect of our finishing this discussion tonight. General Rudenko

wishes to speak for about 10 minutes, and if the defendant’s counsel—of

course, you will understand that a discussion of this sort, an argument

of this sort, cannot go on forever; and in the ordinary course one hears

counsel on one side and counsel on the other side, and then a reply; one

does not go on after that. Do you know how many of the defendants’

counsel want to speak?

DR. DIX: Mr. President, I know that.

THE PRESIDENT: I think probably the best thing would be if we were to

adjourn now and to sit in open session tomorrow, and then we shall

probably be able to conclude this argument in about an hour tomorrow. Do

you agree with that, General Rudenko?

GEN. RUDENKO: I agree.

THE PRESIDENT: Do defendants’ counsel think we shall be able to conclude

it in about an hour tomorrow morning?

[_Several counsel nodded assent._]

THE PRESIDENT: Very well; we will adjourn now and sit at 10 o’clock

tomorrow morning.

[_The Tribunal adjourned until 2 March 1946 at 1000 hours._]

SEVENTY-SECOND DAY

Saturday, 2 March 1946

_Morning Session_

THE PRESIDENT: General Rudenko.

GEN. RUDENKO: Your Honors, permit me to make a few supplementary remarks

concerning the criminal organizations, a problem to which the Tribunal

has devoted much attention in the last few days.