the legal aspect of this problem. There is in the Charter of the
Tribunal a marked absence of any statement to the effect that the
recognition of an organization as being of a criminal nature would
automatically entail the bringing to trial and, further, the condemning
of all the members of these organizations. On the contrary, the Charter
contains a definite indication of an opposite nature. Article 10 of the
Charter, repeatedly quoted at this Trial, states that the national
courts have the right, though not the obligation, to bring to trial
members of organizations declared as criminal. Consequently, the
question of the problem of the trial and the punishment of individual
members of criminal organizations lies exclusively within the scope of
the national tribunals.
The legal sovereignty of every country that has adopted the Charter of
the Tribunal is thus limited in one respect only: The national courts
cannot deny the criminal character of an organization, once it has been
declared to be criminal. The Tribunal can impose no further limitation
on the legal sovereignty of the contracting parties.
Therefore, Justice Jackson has stated here—and with reason—that the
recognition of an organization as being of a criminal nature and
therefore automatically entailing the mass condemnation of all its
members, is a mere figment of the imagination; I would add, that has not
sprung from legal grounds but from some entirely different source.
It appears to me that this legal problem is also based on a definite
misunderstanding. One of the Counsel for the Defense, Dr. Servatius, was
speaking here of the legislative authority of the Tribunal. The
authority of the International Military Tribunal, organized by four
states in the interests of all freedom-loving peoples, is enormous; but,
of course, this Tribunal, as a legal organization, does not and cannot
possess any legislative authority. When solving the problem of the
criminal character of an organization, the Tribunal is only exercising
the right entrusted to it by the Charter, that is, to solve
independently the question of the criminality of the organizations. Of
course, the verdict of this Tribunal, when coming into force, acquires
the value of a law, but that is the value attached to any of the
verdicts of the courts once it has been delivered.
Counsel for the Defense Kubuschok has stated here that the decision of
the Charter with regard to the criminal organizations is a legal
innovation. This, to a certain extent, is true. The innovation consists
in the Charter of the International Military Tribunal and all its
articles, whose creation, _per se_, is an innovation in the first
instance. But should the Defense consider it possible to deplore this
fact, I would consider it opportune to remind them of the causes of
these legal innovations.
The very evil deeds committed by the defendants and their associates,
deeds hitherto unknown in the history of mankind, have, of necessity,
imposed new legislative measures for protecting the peace, the liberty,
and the lives of the nations against criminal attempts. Moreover, the
states which created this Tribunal and all peace-loving people remain
invariably faithful to the ideals of law and to the principles of
justice. Therefore, responsibility for participation in criminal
organizations will be established only when personal guilt has been
proved. In reality, the national courts will decide the problems of
individual responsibility.
A few words now on the tactical side of the problem: It has been stated
here that several detachments of the SS did not follow any criminal
objective. It is difficult, Your Honors, to find within the fascist
machinery neutral organizations which did not follow criminal
objectives. Thus, the Defense Counsel for the SS, Mr. Babel, mentioned
the existence of a research department for dog breeding within the SS.
It would appear that this was an organization of general utility. It
seems, however, that the learned dog breeders in this organization were
engaged in training hounds to attack human beings and to tear their
appointed victims to pieces. Can we isolate these dog breeders from the
SS?
In Danzig another scientific research institute was engaged in the
preparation of soap from human fat. Perhaps we should exonerate these
soap boilers as well from all criminal responsibility?
At this point two practical suggestions have been put forward by the
Defense Counsel: The isolation, as a separate activity, of the case of
the criminal organizations and the establishment in the various camps of
a Defense organization having as its purpose the collection of
information and evidence. In practice, however, both proposals would
create insoluble difficulties for the Tribunal in the execution of the
immense task imposed upon it by the nations.
This task is precisely formulated in the Charter which instructs the
Tribunal to solve the problem of the investigation of concrete facts
concerning members of these organizations. Therefore an appeal to the
Tribunal to isolate and consider the case of the criminal organizations
as an independent activity is tantamount to an appeal to the Tribunal to
infringe the articles of the Charter.
Article 9 of the Charter decides the problem of the criminal
organizations when investigating the case of any one particular member,
but it also has one other meaning for the Trial. It shows, as I have
already mentioned, that the fact on which the statements and the
solution of the question of the criminality of the organization are
based is the presence in the dock of the accused representatives from
the corresponding organizations. As is known, in the present case all
the organizations which the Prosecution suggests should be considered as
criminal are represented in the dock.
There is evidence in this case which amply suffices to admit the
criminality of these organizations. Therefore the calling of special
witnesses, capable of giving evidence on these organizations, can appear
only as a supplementary source of evidence. I am bringing these matters
to a close, Your Honors, and in closing I cannot omit one argument of
the Defense. It was stated here by the Defense that as a result of the
admission of the criminality of these organizations millions of Germans,
members of these organizations, would be brought to trial. Together with
my colleagues of the Prosecution I am not of this opinion, but there is
something more I would like to say.
By this reference to hypothetical millions the Defense is attempting to
hinder the progress of justice. However, before us, the representatives
of the nations who have borne the burden and the suffering of the
struggle against Hitlerite aggression, before the conscience and
consciousness of all freedom-loving people, appear other figures, other
millions of victims irrevocably lost, tortured to death in Treblinka,
Auschwitz, Dachau, Buchenwald, Maidanek and Kiev. It is our duty to
spare no effort to crush the criminal system directed by the fascist
organizations against humanity. Your Honors, the extent of the crimes
committed by the Hitlerite brigands cannot be imagined. However, we are
not blinded by sentiments of revenge and have no intention of destroying
the entire German people in retaliation. But justice does not permit us
to swerve and thus give free play to the committing of new crimes.
We are deeply convinced that the Tribunal will unswervingly follow the
path towards a just and rapid verdict and that it will, in full measure,
chastise those whose crimes have shattered the earth.
THE TRIBUNAL (Mr. Biddle): General Rudenko, may I ask you a few
questions?
General Rudenko, you remember that Mr. Justice Jackson suggested certain
tests that we should use before we found an organization criminal,
whether the tasks and the purpose of the organization were open and
notorious, in order to show that the members knew what they were doing.
Now, if we find that any organization is criminal we would necessarily
find, I presume, on that test, that its actions were open and notorious.
Now, if a member of that organization found to be criminal was then
tried by one of the national courts, I suppose under that finding he
would not have any right to show that he did not know about it, because
we would have found that the knowledge was so open and notorious that he
must have known, so he could not raise as a defense that he had no
knowledge of the criminal acts, could he?
GEN. RUDENKO: That is quite true. But we are bearing in mind the fact
that the national courts investigating the problem of the individual
responsibility of individual members of the organizations will, of
course, proceed from the principle of individual guilt, since,
naturally, we cannot exclude the possibility that in the organization of
the SA, which fundamentally and in an overwhelming majority was aware of
its criminal purpose, there might yet be individual members who might
have been lured into the organization, either by deception or by some
other reasons, and have been unaware of its criminal purpose.
THE TRIBUNAL (Mr. Biddle): But that would not be any defense to him,
would it? He could not say he had no knowledge, because we would have
already found that the knowledge was so open and notorious that he must
have known.
GEN. RUDENKO: Why? I personally proceed from the standpoint that if the
national court investigates the case of members who plead ignorance of
the criminal purpose of the organization to which they belonged, the
national court must examine these arguments submitted in their defense
and estimate them accordingly.
THE TRIBUNAL (Mr. Biddle): How could they consider that, if we make a
rule that the activities of the organization are so notorious that he
must have known? How can he then say he did not know?
GEN. RUDENKO: I still maintain the point of view, and I still interpret
and understand the Charter to mean that the judgment of the
International Military Tribunal should determine and decide the question
of the criminal character of the organizations, but where the question
of individual responsibility and guilt of every member of this
organization is concerned, the decision falls exclusively within the
competence of the national courts. It is therefore extremely difficult
to foresee all the possible individual cases and the eventualities which
might arise when investigating a category of individual defendants.
You yesterday submitted a question to Sir David Maxwell-Fyfe concerning
a member of the SA who had joined the organization in 1921 and left a
year later. These, of course, are special cases and I cannot state how
numerous they are; they are unavoidable, and when we come to the
question of the extent of his information, the reasons for his entering
and the reasons for his leaving this organization, when we come to
estimate the value of his actions, it seems to me that it should be done
by a national court which will examine the findings of the defense and
appreciate them accordingly.
THE TRIBUNAL (Mr. Biddle): Can you say now what defense he would have
before the national court, except the defense that he was never a
member? Does he have any other defenses so far as we know? Does the Law
Number 10 permit him any other defenses?
GEN. RUDENKO: It is difficult for me, at the present moment, to say what
arguments the members of these organizations may put forward, for were I
to speak, it would be on assumption. But I, for instance, consider, that
the argument produced—if produced—which might be considered sufficient
to exonerate this member of the organization would be that he had been
coerced into joining.
THE TRIBUNAL (Mr. Biddle): May I ask you two more questions.
You used the expression that any evidence given by the defendants would
be merely supplementary. That expression is not known to our law, and I
would be very interested in your telling us what you meant by
supplementary evidence. I do not know what the term means.
GEN. RUDENKO: I did not put it that way. This is perhaps an inaccuracy
of translation. What I did say, speaking of questions connected with
further investigations of the matter of the criminal organizations, was
that this investigation should be carried out together with the
investigation of the case of any one member of this organization,
inasmuch as representatives of those criminal institutions are now in
the dock. But I do say that this is already conclusive material for the
recognition, or the denial, of the criminal nature of this organization.
But the Tribunal can, of course, consider this evidence as inadequate,
or, shall we say, the Defense may consider that further supplementary
evidence may be needed. In this connection, I consider that the calling
of witnesses capable of submitting special evidence on the problem of
the criminal or non-criminal character of these organizations may be
presented to the Tribunal as supplementary evidence.
THE TRIBUNAL (Mr. Biddle): One other question on the SA, which I asked
Sir David yesterday.
What do you consider was the function of the SA after the Röhm Purge,
or, to put it a little differently, what criminal act do you believe the
SA was engaged in?
GEN. RUDENKO: I consider that the SA after the Röhm incident committed
the same criminal acts as the other organizations of Hitlerite Germany.
I wish in confirmation of this evidence to refer to facts like the
seizure of the Sudeten territory. As is well known, detachments of the
SA played an active part in this affair.
All the subsequent events which occurred in Germany in connection with
the Jews and, later, in the territories seized by
Germany—Czechoslovakia and others—these criminal events took place
with the connivance of this organization—the SA.
THE TRIBUNAL (Mr. Biddle): Thank you.
THE PRESIDENT: Does the Prosecutor for the French Republic wish to say
anything?
THE FRENCH PROSECUTOR: No.
DR. DIX: I have, as counsel for the Defendant Schacht, an indirect
interest in the question of the criminality of the group Reich Cabinet
(Reichsregierung) because Schacht was a member of the Reich Cabinet. I
want to point out, however, at the very beginning that I do not want to
make detailed statements now either of a legal nature or in regard to
the facts of the case. I shall do that rather at the time of my
concluding speech.
What I want and seek now, and for which I ask the support of the
Tribunal, is a clarification and amplification of those answers which
Mr. Justice Jackson and Sir David Maxwell-Fyfe gave yesterday to your
questions, Mr. Biddle.
I should like to point out that it is, of course, clear to me that I
have no right to ask any questions of the members of the Prosecution.
Formally speaking, I could at the most ask the Tribunal to supplement
the questions which were put yesterday by the Tribunal. I believe,
however, that this formal objection has no practical significance,
because I am convinced that Sir David, who will see the pertinence of my
request to have his answer extended, will be prepared to amplify the
answer given to the question by Mr. Biddle without discussing the
theoretical question, whether he is under any obligation to do so.
Sir David Maxwell-Fyfe was asked yesterday whether he considers the
Reichsregierung, that is to say, the Reich Cabinet, as it was composed
on 30 January 1933, in view of the then relatively small number of
National Socialist cabinet members, criminal even at that time and if
so, whether he is of the opinion that this hypothetic criminal character
was at that time discernible to other people.
Sir David answered this question of Mr. Biddle’s in the affirmative and
based this answer (1) on the contents of the Party program and (2) on
the fact that already at that time the Leadership Principle had been set
forth in the program.
I should like to ask if Sir David would supplement his answers along the
following lines: Does Sir David really mean to say that the Leadership
Principle as such, that is to say, purely as an abstract theory, is not
only to be rejected politically or for other reasons but is also to be
considered criminal? I want to make it understood that I am speaking
about the abstract principle, without considering any factual
developments in the ensuing period of time.
Concerning his second answer, that the Party program occasions him to
declare that even at that time the Reich Cabinet is to be considered
criminal and was recognizable as such, this answer—not directly in
response to Mr. Biddle’s first question put in the course of further
questions addressed to him by the Tribunal—he added to and
substantiated by declaring that the aim expressed in the Party program
of eliminating the Treaty of Versailles and the announcement therein of
the desire for the annexation of Austria were the criminal points in
this program.
May I ask Sir David to state, first, whether these two points of the
Party program, that is to say, the abrogation of the Treaty of
Versailles and the Anschluss, were with the exception of the Leadership
Principle, the only points of the Party program which caused him to
consider that program criminal, that is, to consider a government
criminal which knew that program? Secondly, I should like to ask whether
he really wants to put forward the opinion that an attempt to attain a
revision or an abrogation in a peaceful fashion, that is, by way of
negotiations, of a treaty found to be oppressive, very oppressive, by a
nation, can be considered criminal.
Furthermore, I should like to ask him to state whether, considering the
great democratic principle of the right of self-determination of nations
and considering the history of the annexation movement in Austria
itself—and I remind him of the plebiscite of 1919 when this Anschluss
was demanded by, one may safely say, 100 percent of the Austrian
population—he as a politician would consider a political party or a
political program criminal which aimed at reaching this goal in a
peaceful fashion. And here I should like to stress, again in order not
to be misunderstood, that the later development and everything which
actually happened and anything which might not have happened in
accordance with the Party program is to be left out of consideration and
only the Party program as such taken into consideration. Upon that, of
course, the sense of his answer depended when he said, “Yes, the Party
program is the basis of the criminal character.”
Now, finally, to come to the end, it would be consistent with the
logical course of my explanations, to wait until Sir David has decided
on this question, an answer to which I should like to request from Sir
David and also from Mr. Justice Jackson, who is not here today. . .
THE PRESIDENT: [_Interposing._] Dr. Dix, the Tribunal will, of course,
consider anything that you have said insofar as it refers to matters of
principle, but they do not think that this is the proper time for
Counsel for the Defense to pose questions to counsel for the
Prosecution. The matter has already been fully dealt with, and the
Tribunal do not propose to ask any further questions of the Prosecution
unless the Prosecution wish to say anything in answer to what you have
to say.
DR. DIX: Your Lordship, that was what I took the liberty of saying at
the beginning. I realize that it is Sir David’s free will and decision
as to whether he cares to comply with my request to add to his answer to
the questions posed by Mr. Justice Jackson. That I have to leave to him.
I have only a short question, which is intended to prevent our
misunderstanding each other. It is always well not to be misunderstood.
I remember—but I may be mistaken, and that is why I wish to ask Sir
David what Mr. Justice Jackson declared as his opinion—that he did not
consider the Party program, as such, criminal. As I have said, this is
what I remember. I did not take any notes on it, because it did not
strike me particularly at that time, since I considered it self-evident.
Therefore I may be mistaken. But if my memory is correct, I should like
to ask Sir David to state whether there is any uniform attitude on the
part of the Prosecution toward this point.
THE PRESIDENT: Dr. Dix, the Tribunal asked the Prosecution to present
their arguments in principle on the question of these organizations, and
they wished also to hear counsel for the organizations in order that
these matters should be cleared up, with a view to any possible evidence
which might have to be given. They have heard counsel for all four
prosecutors. They have asked them questions which they thought right to
ask them in order to clear up any points. They have heard counsel for
all the organizations and they have heard Counsel for the Prosecution in
reply. They do not propose to ask any further questions of the
Prosecution at this stage. Of course Counsel for the Prosecution and
Counsel for the Defense will be fully heard at a later stage.
DR. DIX: I have come to the end of my statement. I leave it to the Court
and Sir David as to whether he wants to answer these questions now.
DR. SEIDL: Mr. President, I should like to give a short explanation to
the question as to which of the indicted organizations, the Defendant
Frank belonged. Is that possible at this moment?
THE PRESIDENT: Dr. Seidl, the Tribunal do not think this is an
appropriate time for any of the counsel for individual defendants to go
into matters connected with the charges against the organizations. They
will, of course, be heard in the course of their own defense, but this
is not the appropriate time. This is only a preliminary discussion for
the purpose of clarifying the issues which relate to the organizations.
DR. SEIDL: Yes, but I should like to use this opportunity to clarify a
mistake which slipped in the day before yesterday. The day before
yesterday I protested against the statement that the Defendant Frank was
a member of the SS and this seems to have been translated incorrectly.
THE PRESIDENT: But Dr. Seidl, won’t it appear in the shorthand notes?
You have not seen the shorthand notes yet?
DR. SEIDL: I have not seen the transcript yet, but I believe that by
error “SS” was translated as “SA.” The Defendant Frank has never denied
that he was an SA Obergruppenführer. What I wanted to point out is only
that the statement in the Indictment that he was an SS general is not
correct and also that the statement in Annex B about the nature of the
criminal element is not pertinent, because it is said there that he was
an SS general. But I attach importance to the fact that the Defendant
Frank has never denied that he was an SA Obergruppenführer.
THE PRESIDENT: Very well, but you will have an opportunity to develop
the whole case of Frank when your turn comes.
DR. SEIDL: Yes, but the question is merely this, as to whether the
Defendant Frank was a member of the SS or not. As long as the
Prosecution do not present any definite proof of the membership of the
Defendant Frank in the SS, I have to contradict this statement. I do not
believe that it is the task of the Defense to prove that the Defendant
Frank was not a member of the SS. I am convinced that, on the other
hand, this is one of the tasks of the Prosecution.
THE PRESIDENT: Very well; I have heard what you said.
DR. SERVATIUS: Dr. Servatius, for the Leadership Corps. . .
THE PRESIDENT: Dr. Servatius, the Tribunal are prepared to hear counsel
for the organizations very shortly in the rebuttal, but only very
shortly, as otherwise we may go on interminably.
DR. SERVATIUS: I do not want to make a speech, but merely to speak for
about 5 minutes, in order to define my attitude towards a few matters of
evidence. First, I have two questions to ask concerning the limitation
of the proceedings to certain groups of members. I should be grateful if
the Prosecution could give a statement as to whether the exception of
certain parts of the organizations, as has taken place, is a final one
or whether other procedures and steps are being held in reserve. This
was stated originally in reference to the Leadership Corps. Concerning
the limitation of the proceedings to certain groups of members in
reference to the Leadership Corps, I do not wish to make any further
motion inasmuch as that limitation has already been effected. I should
be glad, however, if a decision could still be reached concerning the
women. The female technical aides who were employed in the offices
cannot, in my opinion, be included in the staffs. At any rate, they do
not belong to the Leadership Corps, although they worked with the
staffs. These women themselves are of this opinion, and also the
officers in the camps shared this opinion. Accordingly not a single
application for leave to be heard has been made by any woman in the
British zone.
I presume it is known that women, as a matter of principle, were kept
away from politics in the National Socialist State; and therefore, they
can hardly be connected with the crimes stated in Article 6.
Now I should like to speak about two points concerning questions of
evidence. As every profession creates the tools which it needs, so the
jurist creates concepts to solve his problems. These concepts are not
created for their own sake; thus the concept of the criminal
organization shall serve to call guilty persons to account who would
otherwise possibly evade this responsibility of theirs. In establishing
the Charter the procedure was this, that one did away with the
traditional structure of the state in order to reach the individual
organs. But in order to be able to seize these organs, one brought them
together again through the concept of the guilt of conspiracy. In this
way, however, only a relatively small circle can be reached, since its
members would have to be bound to each other by means of an agreement.
In order to enlarge this circle by means of legal technique, the concept
of a criminal group or organization was created. This organization is
involved in the agreement of conspiracy only at the very top, while the
members automatically, without their own knowledge, are included in the
conspiracy. Such a definition of the concept of a criminal organization
is justifiable only insofar as it is useful in getting hold of the
really guilty persons and only the guilty ones.
In order to define the limits of this concept, I should like to discuss
two further points concerning the determination of guilt and therefore
necessarily relevant to the question of admissibility of evidence.
First, there is the question of the members’ lack of knowledge of this
criminality—the lack of knowledge resulting from secrecy—and then the
attitude of the members after they had recognized the offenses being
committed. In my opinion, the examination of guilt cannot be dismissed
by pointing to the alleged knowledge of foreign countries about the real
conditions. In foreign countries a propaganda was effective which
exaggeratedly brought these things to light. In Germany all these facts
remained secret, since because of their very nature they had to be
secret—for instance, what was going on in the extermination camps—and
because they had to be kept secret for political reasons. Moreover, the
things which have become known here were so unimaginable that even in
Germany one could not have believed them, had they become known during
the war. It must be relevant to determine not whether a single
individual member had no knowledge, but that 99 percent of the
individual members acted in good faith. In this case, the organization
is not criminal, but there could have been a criminal in it. If this is
determined, then the legal construction of the criminal organization is
superfluous and thereby false. The legal concepts existing until now
will then be sufficient for bringing the guilty to trial.
The next viewpoint: The criminal nature or the criminal character of
which the Charter speaks shows that that must be something which
concerns the entire organization, and that it must be a continuous state
of affairs. Individual acts which were rejected as wrong by the
organization or the overwhelming majority of its members cannot
establish the criminal character of the organization. The attitude of
all the members to the incriminating acts is therefore of decisive
importance and thus of evidentiary relevancy.
We do not need the concept of the criminal organization in order to
punish individual criminals whose acts were rejected by the majority.
Among such individual cases, in organizations which comprise millions of
members, there may be cases in which smaller or even larger groups or
merely certain local districts took part.
I believe that it is really a major task of the Tribunal to define, with
the objectivity of the judge, the nature of this guilt as applied to the
entire organization. I am of the opinion that the points I have
mentioned, the secrecy of these facts and the attitude of the members
after gaining knowledge, must form the basis for the collecting of
evidence.
THE TRIBUNAL (Mr. Biddle): I want to ask some questions.
Dr. Servatius, I would like to ask you—and I will ask other counsel for
the organizations—whether in general you accept the definition of
criminal organizations suggested by Mr. Justice Jackson, which is found
on Pages 19 and 20 of his statement? You will remember that he made five
general tests. Now, in order to determine what evidence should be taken,
we must determine what is relevant. Now, the test of what is relevant
depends on a general definition of what is common to all organizations
for that purpose. Now, do you or could you now say whether in a general
way you accept those tests for the purpose of taking evidence?
DR. SERVATIUS: I have not yet thought about that and have not had a
chance to discuss it with my colleagues. I should be grateful if we
would be given such an opportunity. Perhaps this afternoon a
representative of the Defense Counsel for the organizations could report
to the Court about this.
THE TRIBUNAL (Mr. Biddle): Let me ask you another question. What, in
your mind, are the tests that should be applied for the purpose of
taking evidence?
DR. SERVATIUS: I did not quite understand the question.
THE TRIBUNAL (Mr. Biddle): I said that Mr. Justice Jackson had suggested
a definition from which the relevancy of certain evidence could be
established. Now, have you got any suggestion to offer for that same
purpose?
DR. SERVATIUS: I should not like to commit myself without having spoken
to my colleagues. It is a question of great importance which I should
not like to deal with by myself.
THE TRIBUNAL (Mr. Biddle): Yes, but it is the basis of this entire
argument. The very purpose of the argument was to develop that.
DR. KUBUSCHOK: In the course of yesterday’s debate the problem was
discussed as to whether the task set before the Tribunal by the Charter
can be considered a legislative act. The question was brought up as to
whether, if we answer the preliminary question in the affirmative, the
Court has the possibility of giving any binding instructions to the
national court which has to try individuals, according to Law Number 10.
That concerns, above all, the extent of the examination of the guilt of
the individual member and the limitation of the scope of punishment for
minor cases. I believe that if we follow up this deliberation we shall
be led from a play upon words into a labyrinth when it comes to the
practical application. Actually the task given the Court is not a
legislative act. It is not a procedural innovation, if the national
court in subsequent proceedings is bound by the previous decision of
this Tribunal. Such cases are quite plausible and legally admissible. If
elsewhere in criminal procedure a criminal court is bound by a previous
decision, say of an administrative court, we consider these cases quite
in order and unobjectionable. Likewise a criminal court could, for
instance, be bound in judging a case of embezzlement to wait for the
previous decision of the civil court as to whether the object embezzled
was the property of somebody else.
Here, too, nobody would think that the civil judge was undertaking an
act of legislation. That another court’s decision is binding on the
criminal court and is the premise for its sentence does not in any way
mean that the author of the criminal code has not completed his
legislative task and that this has now to be done by the court which
takes the preceding decision. In my opinion we therefore do not have to
consider this point any further, for Article 9, Paragraph 1, of the
Charter demands of the Tribunal a clear and unequivocal decision of the
question whether the organization is criminal or not.
More cannot be read either into the Charter or into Law Number 10.
Yesterday Sir David defined his attitude to the five points which were
submitted by me for consideration as to relevancy of evidence. In regard
to the two last points he raised the objection that they were to be
dealt with in the subsequent trials envisaged by Law Number 10. It was a
question of the grounds for exonerating persons—for instance, coercion,
deception, _et cetera_. I want to avoid repetition and point out only
the following: It is quite correct that the question of coercion and
deception and other reasons for the exoneration of persons be discussed
in subsequent trials. In connection with this, Sir David also called the
attention of the Court to a really noteworthy problem—that is, the
problem of a deception by the state, that is, a problem of mass
suggestion. This is really a very important problem. It affects many
members, as far as their joining is concerned. But it leads to the
broadest deduction as to the guilt of the entire membership and the
character of the total organization.
We have therefore to pay particular attention as to how the problem of
deception on the part of the state affected the member and thereby was
characteristic of the organization. All grounds for the exoneration of
persons are therefore also to be examined by the Tribunal in judging the
question of the character of the organization. Furthermore, evidence
must be taken on the broadest basis.
If the Tribunal were to make any limitation now, there would be the
possibility that later, at the end of the Trial, in contrast to its
present opinion, it might consider as relevant material now excluded.
In yesterday’s debate the importance of the question was discussed, in
regard to the proposed declaration of criminality, as to what should be
considered as constituting knowledge on the part of the single member.
Sir David here applied the standard of a person of average intelligence
and wants to consider as guilty anybody who was above that standard.
I have already recently explained that in regard to laws threatening
such a severe punishment as in this case, all systems of penal law
require that willful intent on the part of the perpetrator be proved.
Offenses of negligence are punishable only in exceptional cases, and
then only with minor penalties. At any rate in a case of an offense by
negligence it must be clear to the offender that he is under an
obligation to examine his action from the point of view of penal law.
Law Number 10—and now in connection with it the proposed verdict of
this Court—represents an ex post facto law.
In the case of the main defendants the Prosecution have justified the
deviation from the generally recognized principle _nulla poena sine
lege_ on the ground that they themselves did not act in accordance with
this principle and cannot, therefore, base themselves on it now. This,
however, does not in any way apply to the organizations, quite apart
from the question whether this argument can be accepted at all.
At any rate, however, in considering the element of negligence one
should also not overlook the fact that the obligation to exercise
attention differs in the case of _ex post facto_ laws from what it would
be in the case of existing laws.
In this connection I should like to refer to the fact that the question
of whether the statutes of the Party organizations were illegal or not
has often been examined already, even earlier, at the time of the Weimar
Republic. Political considerations definitely favored such a
declaration. Apparently, legal considerations at that time did not let
the carrying out of such a procedure seem practical. What measure should
we then apply to the individual member’s ability to judge such matters,
if the legal problem is so difficult and lends itself so very much to
discussion?
The Prosecution has restricted the motion so as to exclude the auxiliary
workers in the case of the Gestapo. The reason for this can only have
been that in the case of these members knowledge cannot be assumed to be
self-evident. I ask that the conclusions drawn in this individual case
be applied to the members of other organizations. Should not the
individual member of an organization comprising millions who had far
less contact with the executive organ than did an auxiliary worker of
the Gestapo—should not this member be judged much more favorably, as
far as knowledge is concerned, than this group which has been excepted?
Are we not in particular obliged to use the best methods possible to
inform ourselves as to the knowledge or lack of knowledge of the
individual member? Sir David, in discussing the problem of negligence,
suddenly spoke of an ostrich policy. But here we have to consider that
the person who sticks his head into the sand in order not to see has
actually seen something and therefore does not want to see any more. It
is quite different in the case of this member who from the sources at
his disposal can gain no knowledge of individual actions; who, in
particular, has no knowledge of whether possibly only. . .
THE PRESIDENT: Forgive my interrupting you, but the Tribunal have
already heard and listened with attention to your interesting argument,
and the argument that they now are prepared to listen to is only a very
short argument in rebuttal. As I have already pointed out, it seems to
me that the greater part of what you are now saying is what you have
already said. We cannot go on hearing these arguments at great length.
DR. KUBUSCHOK: Since I have arrived at the end of my remarks, I should
like in conclusion just to introduce one point of view which concerns
the defense of the Reich Cabinet. The number of members of the Reich
Cabinet is very limited. One half are in the defendants’ dock. Is it
really necessary to consider the other half cumulatively as an
organization, since the small number of those concerned makes possible
an individual trial, with all the legal guarantees given therein? To
this extent I should like to refer to the remarks made by my colleague,
Dr. Laternser, who mentioned the provision of the Charter that the
Tribunal is not compelled to reach a decision but that for reasons of
expediency it can refrain from doing so.
THE PRESIDENT: Mr. Biddle wants to ask you some questions.
THE TRIBUNAL (Mr. Biddle): I have just one question. Will you listen to
this very carefully?
If the Tribunal find that an organization was being used for a criminal
purpose, and certainly, with respect to some organizations, there is
ample evidence that might justify such a finding, why, then, would the
Tribunal not be justified in holding that organization as a criminal
organization insofar as it was composed of persons who had knowledge
that it was being so used and voluntarily remained members of the
organization? In other words, the definition would state that it
consisted of members who had actual knowledge that the organization was
engaged in the commission of crime.
DR. KUBUSCHOK: The organization cannot be separated from the total
number of its members. The declaration of criminality in connection with
Law Number 10 is to affect each individual member. The task of the
Tribunal would not be fulfilled if it limited that task and excluded
from the organization unspecified individuals. In the task which I have
mentioned we cannot overlook the practical purpose, and that will not be
guaranteed if such a limitation is made.
THE TRIBUNAL (Mr. Biddle): I will ask just one more question. I do not
think you have answered my question. I will put it very simply again.
How would that definition be unfair to any individual?
DR. KUBUSCHOK: If only a limited circle of persons in connection with
the organization is branded as criminal, this necessarily results in an
injustice to the other members of the organization. The declaration
naturally affects the name of the entire organization, and, therefore,
the declaration of criminality affects each individual member, even if
one tries to limit the definition.
THE TRIBUNAL (Mr. Biddle): Thank you.
THE PRESIDENT: I think in view of the time we had better adjourn for 10
minutes.
[_A recess was taken._]
DR. LATERNSER: Mr. President, it was not my intention to make statements
today about the concept of the criminal organizations, because I believe
that my statements of yesterday on this point were comprehensive. I
should merely like to state briefly my attitude to the second question
put by Mr. Biddle to my colleague, Kubuschok.
The second question, if I understood it correctly, was as follows: Why
is it unfair to the individuals who were members of an organization, or
why can it be unfair to them, if this organization is declared criminal?
This declaration of the criminality of an organization is certainly
unfair to all those members who had no knowledge of any supposedly
criminal purpose and aims. For in this question one has to. . .
THE TRIBUNAL (Mr. Biddle): You misunderstood the question, I think; so,
to save time—the question was a very simple one. I do not want to go
into it unless you want to. I will repeat it again. I said this: If an
organization was being used for criminal purposes—and I added that
there was very great evidence that such was the case in certain
instances—why would it not be proper to hold it a criminal organization
insofar as it was composed of persons who had knowledge that it was
being so used and voluntarily remained members? Of course, that would
exclude from the organization everybody who did not have knowledge that
it was engaged in criminal purposes.
DR. LATERNSER: Then I did not understand the question quite correctly,
and further statements in regard to these questions, which have now been
settled, are unnecessary.
DR. LÖFFLER: I should like first of all to correct a misunderstanding.
Sir David stated yesterday in his reply that I had admitted that the SA
had participated in the 10th and 11th of November 1938. I emphasize
expressly that I stated that only 2 percent of the SA at the most were
involved in individual actions, and that obviously applies to this event
as well. This example occasions me to underscore what my colleague,
Servatius, has previously stated about taking into consideration the
so-called mistake of an organization, in a case where an organization
deviates from its path and commits an error—which should be avoided.
The 98 percent who did not participate, as well as the 2 percent who did
participate there, with few exceptions, all regarded this action with
aversion and disgust and were not inwardly in agreement with it.
It is therefore an error on the part of the Indictment if on the basis
of this single event, on the basis of this exceptional case, general
conclusions are drawn as to the general character of the organization.
For it is rightfully protested that the very rejection of this action is
a proof that this is an exception to the general tendency of the
organization.
If, then, it is asserted as a second point that the SA was also
concerned with concentration camps, that is also a further typical proof
of the false conclusion to which one can come in the case of judgment
against the organizations. Of 4 millions there were 1,000 men at the
most, that is, only 0.5 percent. The remaining 3,999,000 had no
knowledge of this, and this can be proved. No one will wish to claim
that the fact that 0.5 percent were involved in something about which
the others knew nothing at all allows a conclusion to be drawn as to the
question of criminal character. But this small percentage, as such, is
not an answer to the question which is being raised at this point.
Rather we are, as before, of the opinion that the explanation which was
made by attorney Kubuschok absolutely covers the criminal character as
formulated by the Defense, if the basic conditions are met, as set down
by attorney Kubuschok in agreement with all defense counsel for the
organizations. On the basis of this formulation, that question which
Justice Biddle previously put to counsel for the various organizations
can readily be answered.
I should like to emphasize that yesterday Mr. Justice Jackson made the
suggestion that, instead of having countless witnesses, experts be heard
on the subject of what willful intent can be assumed in the case of the
single organizations. I should like to oppose this emphatically. One
cannot hear any witness or any expert who can tell the Court what, so to
speak, that “common sense” was on the basis of which the question is to
be judged—what knowledge the single members had.
The members, as far as intelligence is concerned, vary greatly. There
are those of average intelligence and there are less intelligent members
of the organizations. If a judgment is to be passed here which also
affects less intelligent members of the organizations and condemns them,
then it is a basic principle of law that this should not be done on the
basis of what the intelligent members of the organizations might and
could have known; that would be an injustice to the average persons and
the less intelligent. Not even the average persons can be taken as a
basis, since this would be an injustice to the still less intelligent,
who would be included in and affected by this judgment.
In conclusion I should like to point out that yesterday’s debate on the
question of the effect of the judgment which this Court is to pass
confirmed in full measure the fears of the Defense Counsel. Mr. Justice
Jackson declared that this judgment would have the character of a
declaration. This is not compatible with the statement which Lieutenant
General Clay, the Deputy Military Governor of the American occupied
zone, made yesterday in an interview for the _Neue Zeitung_, the
American paper for the German population. I should like to quote a
sentence from the latest issue which refutes Justice Jackson’s opinion.
Lieutenant General Clay declares in regard to the question of the fate
of these interned in the United States zone of occupation:
“The decision of the Nuremberg Tribunal will decide what will
happen to them. Their number is at present 280,000 to 300,000.
Should the International Tribunal at Nuremberg, however,
consider all the members of the indicted National Socialist
organizations war criminals, then the number will be increased
to 500,000 or 600,000.”
The declaration made by Justice Jackson yesterday that no mass
retribution is intended could be made only in reference to the present
standpoint of his Government. But there is no guarantee that other
governments will not take another stand or that his Government, which is
not bound to Justice Jackson’s opinion, will not alter its stand.
I should like to conclude with this remark: Justice Jackson mentioned
the shock which the combination of the Charter and decision desired by
the Prosecution—in connection with Law Number 10—has been to the
Defense. I believe that the effect of this shock is not confined to the
Defense alone but affects all people who are interested in justice, for
if the combination of these various laws gives the national courts the
opportunity to call millions of members of organizations to
account—among whom, as Justice Jackson also could not deny yesterday,
there are innocent people—and if punishments for mere membership
ranging from a fine to the death sentence are provided, then it is the
duty of the Defense to point out that the procedure here obviously
threatens to deviate from the basis of law and will necessarily lead to
arbitrary action.
If Justice Jackson then in answer to this refers to the effect of shock
in connection with the death of many Jews, one can say that those things
happened outside the law and in the name of force. This Charter and this
Tribunal, however, want to do away with force and put justice in its
place. But justice must be clear and it must be sure.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Tribunal said
earlier that certain questions had been asked of me. I am perfectly
prepared to answer the three questions if the Tribunal desire their time
to be occupied by my so doing.
THE PRESIDENT: I don’t think the Tribunal wish to hear any further
arguments unless you particularly want to answer anything.
SIR DAVID MAXWELL-FYFE: I did not intend to argue at all. It was only
that Dr. Dix put two questions to me on which he asked my view, and Dr.
Servatius one, but I am in the hands of the Tribunal. I do not want it
to be thought that the Prosecution are not prepared to answer the
questions.
THE PRESIDENT: If you can answer them shortly, we should be quite glad
to hear them.
SIR DAVID MAXWELL-FYFE: The first question that Dr. Dix asked me was to
clarify what I had said about the Führerprinzip in relation to the
Reichsregierung. I can answer that in two sentences. I said that, in
addition to the ordinary support which members of the Reichsregierung in
1933 gave to Hitler under the Führerprinzip, they entrusted their
consciences and wills to him and adopted completely his points of view.
In order that Dr. Dix may be under no misapprehension with regard to his
client, the case for the Prosecution may be put in the words of Dr.
Goebbels, one of the conspirators, on the 21st of November 1934, in
conversation with Dr. Schacht:
“I assured myself that he absolutely represents our point of
view. He is one of the few who accepts the Führer’s position
entirely.”
The second point was on the question of the Party program in relation to
the Treaty of Versailles and the Anschluss. Dr. Dix asked me to deal
with those who desired to effect the aims of the Party program in a
peaceful way. The Prosecution say that does not arise, that the Party
program must be considered in the background of Hitler and other
publications as to the use of force and also as to the existing state of
things in the relationship of Germany with the Western Powers and also
of treaty obligation to Austria and Czechoslovakia.
The third question that was put to me was by Dr. Servatius, about the
Leadership Corps. You will remember, My Lord, that in the statement of
the Tribunal the Prosecution were asked, if they were making any
limitation, to make it now. That is contained in the statement of the
Tribunal. The limitation which we have made—that is, only including the
staff in the case of the Reichsleitung, Gauleitung, and Kreisleitung,
and excluding the staff in the case of the Ortsgruppenleiter,
Zellenleiter, and Blockleiter—is the view to which the Prosecution
adhere and which has been agreed upon by the different delegations. I
wanted Dr. Servatius to know that that was the position. I don’t intend
to repeat the reasons for it which were given by my friend, Mr. Justice
Jackson.
THE PRESIDENT: There is only one thing I should like to say. I think it
might be useful to the Tribunal, if you have them, to let us have copies
of the British statutes to which Mr. Justice Jackson referred and also
of certain judgments of the German courts—if you have copies available.
SIR DAVID MAXWELL-FYFE: They will be found for the Tribunal and the
Tribunal will receive them within the shortest possible time.
THE PRESIDENT: Mr. Dodd, I understand that you have an affidavit which
you wish to put in with reference to the High Command?
MR. DODD: Yes, we do have it. We located this affidavit on Thursday; the
Tribunal had inquired about it on the afternoon of the day before—on
Wednesday, I believe it was. We have prepared for the Tribunal a list of
the offices comprising the German General Staff and High Command as
defined by the Indictment in Appendix B. The list was compiled from
official sources in the Admiralty Office of Great Britain, the War
Office of Great Britain, and the Air Ministry of Great Britain, and
supplemental information was obtained from senior German officers, now
prisoners of war in England and in Germany. The list is attached to this
affidavit, as we intended to submit it this morning to the Tribunal; and
the affidavit describes the source from which this information was
obtained and it points out that the list does not purport to be
exhaustive or necessarily correct in every detail. It is, however,
substantially a complete list of the members of the General Staff and of
the High Command and of the High Command group, and on the basis of this
compilation there appear to have been a total of 131 members, of whom
114 are thought to be living at the present time. I wish to offer the
list formally, together with this affidavit, as Exhibit Number USA-778
(Document Number 3739-PS), I ask that it be accepted without reading.
However, of course, if the Tribunal would like it read over the public
address system, I should be glad to do so.
THE PRESIDENT: No, I do not think you need read it over. Copies have
been given to the Defense?
MR. DODD: Yes, they have, Your Honor. They have been given to the
Defense.
THE PRESIDENT: Very well. Thank you.
MR. DODD: Colonel Smirnov, if Your Honor pleases, is prepared to read
the document with reference to Stalag Luft III. If the Tribunal would
like, we will have him do so.
THE PRESIDENT: I think that might perhaps be done on Monday morning.
MR. DODD: Very well.
THE PRESIDENT: The Tribunal will now adjourn.
[_The Tribunal adjourned until 4 March 1946 at 1000 hours._]
SEVENTY-THIRD DAY
Monday, 4 March 1946
_Morning Session_
MR. COUNSELLOR SMIRNOV: Sir, a few days ago the Tribunal issued
instructions concerning the expedience of reading into the record the
official British report on the responsibility for the slaying of 50
officers of the Royal Air Force coincidentally, as far as possible, with
the proposed interrogatory of General Westhoff and the senior criminal
counsel, Wielen. May I read into the record some of the more essential
passages from this report of the British Government? I shall read into
the record those parts of the document which, on the one hand, testify
to the general character of this criminal act and, on the other hand,
establish the responsibility for the crime.
THE PRESIDENT: Colonel Smirnov, you are offering the document, are you,
as evidence? You are seeking to put the document in evidence?
MR. COUNSELLOR SMIRNOV: This document has already been presented in
evidence and has already been accepted by the Tribunal. I wished only to
read into the record certain extracts from this document. It has been
submitted as Exhibit Number USSR-413 (Document Number UK-48).
THE PRESIDENT: Very well.
MR. COUNSELLOR SMIRNOV: I am quoting Paragraph 1 of the official British
report:
“1. On the night of 24-25 March 1944, 76 R.A.F. officers escaped
from Stalag Luft III at Sagan in Silesia, where they had been
confined as prisoners of war. Of these, 15 were recaptured and
returned to the camp, 3 escaped altogether, 8 were detained by
the Gestapo after recapture. Of the fate of the remaining 50
officers the following information was given by the German
authorities:
“(a) On 6th April 1944, at Sagan, the acting commandant of
Stalag Luft III (Oberstleutnant Cordes) read to the senior
British officer (Group Captain Massey) an official communication
of the German High Command that 41 officers (unnamed) had been
shot, ‘some of them having offered resistance on being arrested,
others having tried to escape on the transport back to their
camp.’
“(b) On 15th April 1944, at Sagan, a member of the German camp
staff (Hauptmann Pieber) produced to the new senior British
officer (Group Captain Wilson) a list of 47 names of the
officers who had been shot.
“(c) On 18th May 1944, at Sagan, the senior British officer was
given three additional names, making a total of 50.
“(d) On or about 12th June 1944, the Swiss Minister in Berlin
received from the German Foreign Office, in reply to his enquiry
into the affair, a note to the effect that 37 prisoners of
British nationality and 13 prisoners of non-British nationality
were shot when offering resistance when found or attempting to
re-escape after capture. This note also referred to the return
of urns containing the ashes of the dead to Sagan for burial.”
The official German version—the official version of the German
authorities—indicated that these officers were shot allegedly while
attempting to escape. As a matter of fact, as definitely proved by the
documentation of the investigation carried out by the British
authorities, the officers were murdered—and murdered by members of the
Gestapo on direct orders from Keitel and with the full knowledge of
Göring.
I shall, with your permission, read into the record in confirmation of
this fact two paragraphs—or rather two points—from the official
British report, that is, Point 7 and Point 8:
“7. General Major Westhoff at the time of the escape was in
charge of the general department relating to prisoners of war,
and on 15th June 1945 he made a statement in the course of which
he said that he and General Von Graevenitz, the inspector of the
German POW organization, were summoned to Berlin a few days
after the escape and there interviewed by Keitel. The latter
told them that he had been blamed by Göring in the presence of
Himmler for having let the prisoners of war escape.
“Keitel said, ‘Gentlemen, these escapes must stop. We must set
an example. We shall take very severe measures. I can only tell
you that the officers who have escaped will be shot; probably
the majority of them are dead already.’ When Von Graevenitz
objected, Keitel said, ‘I do not care a damn; we discussed it in
the Führer’s presence and it cannot be altered.’”
Point 8: I begin the quotation of the official British report:
“Max Ernst Gustav Friedrich Wielen was then the officer in
charge of the Criminal Police (Kripo) at Breslau, and he also
made a statement, dated 26th August 1945, in the course of which
he said that as soon as practically all the escaped R.A.F.
officers had been recaptured he was summoned to Berlin where he
saw Arthur Nebe, the Chief of the Kripo head office, who showed
him a teleprint order signed by Kaltenbrunner, which was to the
effect that on the express order of the Führer over half of the
officers who had escaped from Sagan were to be shot after their
recapture. It was stated that Müller had received corresponding
orders and would give instructions to the Gestapo. According to
Wielen the Kripo, who were responsible for collecting and
holding all the recaptured prisoners, handed over to the Gestapo
the prisoners who were to be shot, having previously provided
the Gestapo with a list of the prisoners regarded by the camp
authorities as ‘troublesome.’”
I would also ask the Tribunal’s permission to read into the record that
part of the text of the official report of the British Government which
deals with the methods of investigation in regard to individual
officers. This documentation has been systematized and divided into
three parts. I take the liberty of reading into the record the data of
the findings referring to the three separate parts. I quote Page 3 of
the Russian text, beginning from Paragraph 2:
“Flight Lieutenants Wernham, Kiewnarski, Pawluk, and Skanziklas.
“On or about 26th March 1944 . . .
THE PRESIDENT: Colonel Smirnov, are you going to read now some of the
evidence upon which the report is based?
MR. COUNSELLOR SMIRNOV: Mr. President, I should like to read out only
from the text proper and particularly those parts of the report which
testify to the methods of investigation applied in the case of
individual officers. I should like to begin reading from the paragraph
dealing with the three groups of officers.
THE PRESIDENT: Paragraph 4?
MR. COUNSELLOR SMIRNOV: Yes.
THE PRESIDENT: Very well.
MR. COUNSELLOR SMIRNOV: “On or about the 26th of March 1944
these officers were interrogated at the police station in
Hirschberg and were then moved to the civil gaol in that town.
On the morning of 29th March Pawluk and Kiewnarski were taken
away and later in the day Skanziklas and Wernham left. Both
parties were escorted, but their destination was unknown. They
have not been seen since and the urns later received at the
Stalag showing their names bear the date 30th March 1944.”
And now the next group of British officers:
“Squadron Leader Cross, Flight Lieutenants Casey, Wiley, and
Leigh, and Flight Officers Pohe and Hake.
“Between 26th and 30th March 1944 these officers were
interrogated at the Kripo headquarters in Görlitz and then
returned to the gaol there. During the interrogation Casey was
told that ‘he would lose his head,’ Wiley that ‘he would be
shot,’ and Leigh that ‘he would be shot.’ Hake was suffering
from badly frostbitten feet and was incapable of traveling for
any distance on foot. On 30th March the officers left Görlitz in
three motor cars accompanied by 10 German civilians of the
Gestapo type. The urns later received at the Stalag bear their
names and show them to have been cremated at Görlitz on 31st
March 1944.
“Flight Lieutenants Humpreys, McGill, Swain, Hall, Langford, and
Evans; Flight Officers Valenta, Kolanowski, Stewart, and
Birkland.
“These officers were interrogated at the Kripo headquarters in
Görlitz between 26th and 30th March. Swain was told that ‘he
would be shot,’ Valenta was threatened and told that ‘he would
never escape again.’ Kolanowski was very depressed after his
interview. On 31st March these officers were collected by a
party of German civilians, at least one of whom was in the party
which had come on the previous day. The urns later received at
the Stalag bore their names and show them to have been cremated
at Liegnitz on a date unspecified.”
I wish to draw the attention of the Tribunal to the fact that similar
data also relate to different groups of British officers slain by the
Germans in Stalag Luft III.
The following page of the text includes identical data relating to
Flight lieutenants Grisman, Gunn, Williams, and Milford, Flight Officer
Street and Lieutenant McGarr. Similar information is given concerning
Flight Lieutenant Long, Squadron Leader J. E. Williams, Flight
Lieutenants Bull and Mondschein, and Flight Officer Kierath. The same
information is given with reference to Flight Officer Stower, Flight
Lieutenant Tobolski, Flight Officer Krol, Flight Lieutenants Wallen,
Marcinkus, and Brettell, Flight Officer Picard and Lieutenants Gouws and
Stevens, Squadron Leader Bushell and Lieutenant Scheidhauer, Flight
Officer Cochran, Lieutenants Espelid and Fugelsang, Squadron Leader
Kirby-Green and Flight Officer Kidder, Squadron Leader Catanach and
Flight Officer Christensen, and Flight Lieutenant Hayter.
I shall, with your permission, read into the record one more paragraph
from this official report. I refer to Paragraph 6 of the official
British report and also to Paragraph 5, because it is of essential
importance.
THE PRESIDENT: I was going to suggest you should read Paragraph 5.
MR. COUNSELLOR SMIRNOV: I am going to read Paragraph 5 of the British
text:
“According to the evidence of the survivors there was no
question of any officers having resisted arrest or of the
recaptured officers having attempted a second escape. All were
agreed that the weather conditions were against them and that
such an attempt would be madness. They were anxious to be
returned to the Stalag, take their punishment, and try their
luck at escaping another time.
“6. The Swiss representative (M. Gabriel Naville) pointed out on
9th June 1944 in his report on his visit to Sagan that the
cremation of deceased prisoners of war was most unusual (the
normal custom being to bury them in a coffin with military
honors) and that was the first case known to him where the
bodies of deceased prisoners had been cremated. Further it may
be noted that if, as the Germans alleged, these 50 officers who
were recaptured in widely scattered parts of Germany had
resisted arrest or attempted a second escape, it is probable
that some would have been wounded and most improbable that all
would have been killed. In this connection it is significant
that the German Foreign Office refused to give to the protecting
power the customary details of the circumstances in which each
officer lost his life.”
Those are the parts of the official report of the British Government
which I had the honor to communicate to the Court.
THE PRESIDENT: I think it would perhaps be better if you also read the
appendix so as to show the summary of the evidence upon which the report
proceeded, Paragraph 9.
MR. COUNSELLOR SMIRNOV: I refrained from reading the appendix because it
had already been read in due course by Sir David Maxwell-Fyfe. I shall
read it once more with pleasure:
“9. The appendix attached hereto gives a list of the material
upon which this report is based. The documents referred to are
annexed to this report.
“Appendix.
“Material upon which the foregoing report is based:
“(1) Proceedings of court of inquiry held at Sagan by order of
the senior British officer in Stalag Luft III and forwarded by
the protecting power.
“(2) Statements of the following Allied witnesses: (a) Wing
Commander Day, (b) Flight Lieutenant Tonder, (c) Flight
Lieutenant Dowse, (d) Flight Lieutenant Van Wymeersch, (e)
Flight Lieutenant Green, (f) Flight Lieutenant Marshall, (g)
Flight Lieutenant Nelson, (h) Flight Lieutenant Churchill, (i)
Lieutenant Neely, (k) P. S. M. Hicks.
“(3) Statements taken from the following Germans: (a) Major
General Westhoff, (b) Oberregierungsrat und Kriminalrat Wielen
(two statements), (c) Oberst Von Lindeiner.
“(4) Photostat copy of the official list of dead transmitted by
the German Foreign Office to the Swiss Legation in Berlin on or
about 15 June 1944.
“(5) Report of the representative of the protecting power on his
visit to Stalag Luft III on 5 June 1944.”
THE PRESIDENT: Then, for the purposes of the record, you had better read
in the signature and the department at the bottom.
MR. COUNSELLOR SMIRNOV: The document is signed by H. Shapcott,
Brigadier, Military Deputy, and is certified by the Military Department,
Judge Advocate General’s Office, London, 25 September 1945.
THE PRESIDENT: Colonel Smirnov, so far as the Russian Chief Prosecutor
is concerned, does that conclude the case for the Prosecution?
MR. COUNSELLOR SMIRNOV: Yes.
THE PRESIDENT: Thank you.
DR. NELTE: Mr. President, Paragraph 9 of the report which has just been
read by the Prosecution mentions the documents which served as a basis
for it and says that they are attached to the report. The individual
documents on which the report is based are listed in the appendix. I ask
the Tribunal to decide whether Document USSR-413 satisfies the
requirements of Article 21 of the Charter, since the material on which
it was based, and which is expressly mentioned in the report, has not
been produced along with it. I request that the Prosecution be asked to
make the appendix available to the Defense as well.
THE PRESIDENT: Dr. Nelte, do you mean that you have only had the report
made by the Brigadier and have not seen any part of the other evidence
upon which the report proceeds?
DR. NELTE: Mr. President, the Tribunal decided during an earlier phase
of this Trial . . .
THE PRESIDENT: [_Interposing._] Yes, but I did not ask you what we had
decided. I asked what you had received. Have you received from the
Prosecution the whole of this document or only the report made by the
Brigadier?
DR. NELTE: Only the report, without the appendix.
THE PRESIDENT: Well, the Tribunal certainly intended that the whole of
the document should be furnished to defendant’s counsel, and that must
be done so that you may have all the documents before you.
DR. NELTE: But that has obviously not been done. The appendix expressly
mentions statements made by Major General Westhoff and by
Oberregierungsrat Wielen. I am not acquainted with either of these
statements. They were not attached to the report.
THE PRESIDENT: You must have them. The Prosecution must see that the
whole of this document is furnished to the Defense Counsel.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I do not think the whole of
it has been copied, but if Dr. Nelte will let us know if he wants the
whole of it, or a part, we will co-operate the best way we can. The last
thing we desire is that he should not have it. We want him to have
everything he wants.
THE PRESIDENT: Well, Sir David, will you inform the Tribunal whether the
Prosecution have now concluded their case.
SIR DAVID MAXWELL-FYFE: Yes, My Lord. That is the conclusion of the case
for the Prosecution.
THE PRESIDENT: Very well. Then we will now proceed with the applications
for witnesses and documents by the second four of the defendants:
Kaltenbrunner, Rosenberg, Frank, and Frick.
DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): The Defendant
Kaltenbrunner wishes to call a number of witnesses whom I will name now.
First, Professor Dr. Burckhardt.
SIR DAVID MAXWELL-FYFE: My Lord, if the Tribunal approves, we will adopt
the same procedure as was done on the first four defendants.
With regard to the three Swiss witnesses, Burckhardt, Brachmann, and
Meyer, the interrogatories were granted on the 15th of December and
submitted on the 28th of January. The Prosecution considered that the
interrogatories were rather on the vague side and suggested that they
might be made more precise. The Prosecution have no objection to
interrogatories in principle, and I am sure that there would not be much
difference between Dr. Kauffmann and the Prosecution as to the form.
That applies to the first three witnesses.
THE PRESIDENT: We are informed that none of these three witnesses has
been located yet.
SIR DAVID MAXWELL-FYFE: Well, I respectfully agree, My Lord. That is the
position of the Prosecution, that we have no objection in principle to
these interrogatories, and if we can help the Court in any way to locate
the witnesses, we should be glad to do so.
THE PRESIDENT: When were the interrogatories furnished to the
Prosecution?
SIR DAVID MAXWELL-FYFE: The 28th of January, My Lord.
THE PRESIDENT: And were the Prosecution’s objections communicated to the
Defense Counsel shortly afterwards, or when?
SIR DAVID MAXWELL-FYFE: I am sorry, I am afraid I have not got that
date, My Lord.
THE PRESIDENT: Wouldn’t the most sensible course be for the Prosecution
to try to agree upon a suitable form of interrogatory whilst the General
Secretary is continuing his inquiries to find the witnesses?
SIR DAVID MAXWELL-FYFE: Yes. Well, if Dr. Kauffmann will communicate
with me, I have no doubt that we could agree on a form that would be
mutually acceptable.
THE PRESIDENT: Very well.
DR. KAUFFMANN: Mr. President, I think there is no need for me to repeat
the individual questions which I have listed in the interrogatory. There
are 19 of them. I do not think that I need repeat them now.
THE PRESIDENT: No, certainly not.
DR. KAUFFMANN: The fourth witness is the former German Minister in
Belgrade, Neubacher. At present he is in the internment camp Oberursel
near Frankfurt, in American custody.
SIR DAVID MAXWELL-FYFE: No objection to this witness.
DR. KAUFFMANN: Does the Tribunal want me to specify the evidence?
THE PRESIDENT: Yes, if you would.
DR. KAUFFMANN: Neubacher will, in the opinion of the Defendant
Kaltenbrunner, be able to testify that the order given by Hitler in
October 1944 to stop the persecution of the Jews was really given at
Kaltenbrunner’s suggestion.
Furthermore, in the opinion of the defendant, he will be able to testify
that when Himmler was appointed Chief of the Reichssicherheitshauptamt
he put the defendant in charge of Amt III and VI. This seems to me to be
important, since so far the Indictment has always been based on the
defendant’s definite connection with Amt IV, which is, indeed, borne out
to a certain extent by the evidence. Neubacher is expected to be able to
testify to this.
THE PRESIDENT: Dr. Kauffmann, if those are the questions which it is
desired to interrogate Neubacher on, couldn’t they be dealt with by
interrogatories?
DR. KAUFFMANN: According to the information given to me by
Kaltenbrunner, Kaltenbrunner attaches importance to the personal
appearance of this witness for reasons which are easy to understand. I
believe that Kaltenbrunner considers this witness one of the most
important witnesses, and he would like to see this witness called.
THE PRESIDENT: Well, the Tribunal will consider that.
DR. KAUFFMANN: The next witness is Number 5, Wanneck, at present in
American custody in Heidelberg.
SIR DAVID MAXWELL-FYFE: The Prosecution suggests that the witness
Wanneck is cumulative. According to Dr. Kauffmann’s application, he is
going to deal with the point that the Defendant Kaltenbrunner was
actually occupied mainly with the task of the intelligence service and
that he objected to persecution of the Jews. That is already covered by
Neubacher, and it is also covered by the cross-examination of the
Prosecution’s witness Schellenberg, who was the chief of Amt VI, which
Dr. Kauffmann has set out in his note on the witness Neubacher, Number
4, as being one of the Intelligence Ämter.
DR. KAUFFMANN: I leave it to the Tribunal to decide whether this witness
could be dealt with by means of an interrogatory. But I do consider the
evidence material relevant in the case of Wanneck as well. In a certain
sense it is cumulative, but some points in it go further. But I agree to
an interrogatory.
The sixth witness is Scheidler.
THE PRESIDENT: Sir David, do you think it would be unreasonable to
administer an interrogatory?
SIR DAVID MAXWELL-FYFE: No, My Lord. Generally I make no objection to
interrogatories at all.
With regard to Scheidler, he was, as I understand the application, the
Defendant Kaltenbrunner’s adjutant, and as such the Prosecution would
not make any objection. But I think it would be convenient if I were to
draw the attention of the Tribunal to the fact that the next six
witnesses, Numbers 6 to 11 inclusive, all deal with concentration camps,
and numbers 6, 8, 9, and 11 deal with Mauthausen. I want to give Dr.
Kauffmann warning that I shall ask for some selectivity among these six
witnesses.
The Prosecution feel that the application for an adjutant is a
reasonable one, but it will be reflected in objections to later
witnesses.
DR. KAUFFMANN: The defendant naturally considers it important that the
adjutant who served him for many years and who accompanied him on every
single trip, as Kaltenbrunner told me himself, be called. He knows also,
for instance, that the wireless message to Fegelein, which is part of
the accusation, did not come from Kaltenbrunner and that his radiogram
was never sent. He also knows that Kaltenbrunner had made all
preparations for the Theresienstadt camp to be made accessible to the
Red Cross. These are things which have not been mentioned by previous
witnesses, but which shed some light on the person of the defendant.
THE PRESIDENT: You are speaking now of Scheidler?
DR. KAUFFMANN: Yes.
THE PRESIDENT: Sir David, the Tribunal would like you to deal with the
whole of that group together, and then Dr. Kauffmann can answer what you
say.
SIR DAVID MAXWELL-FYFE: With pleasure, My Lord.
The next witness is Ohlendorf, who was called as a witness for the
Prosecution. The situation as I have found it is that Dr. Kauffmann did
cross-examine the witness Ohlendorf on the Defendant Kaltenbrunner’s
responsibility on concentration camps on the 3rd of January of this
year, at Page 2034 of the transcript (Volume IV, Page 335).
The witness Wisliceny, Number 12, who has not been cross-examined on
behalf of Kaltenbrunner by Dr. Kauffmann, would be the natural person to
deal with that point. But, of course, if Dr. Kauffmann has any special
point for the recalling of Ohlendorf, he will tell the Tribunal.
That is the position.
THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of
cross-examining General Ohlendorf and actually availed yourself of the
opportunity wasn’t that the appropriate time for you to put any
questions which you had on behalf of the Defendant Kaltenbrunner?
DR. KAUFFMANN: I should like to remind you that Kaltenbrunner was ill
for more than 12 weeks and that I could get almost no information from
him. At the session of 2 January the right of cross-examining the
witnesses at a later date was expressly granted me by the Tribunal. I
had, as the Court will remember, made a motion to adjourn, and then I
was permitted to cross-examine the witnesses at a given time which would
suit me.
That appears in the transcript of 2 January 1946.
As these witnesses have all been called in Kaltenbrunner’s absence, I
should like to cross-examine now in his presence. I am, however,
prepared to forego the cross-examination, if I can talk to the witnesses
beforehand. Perhaps it will not be necessary to call one or the other
witness.
THE PRESIDENT: What do you mean by one or the other witness? Which is
the other? Wisliceny?
DR. KAUFFMANN: Number 7, Ohlendorf, and then Number 11, Höllriegel, and
Number 12, Wisliceny, also Number 14, Schellenberg. All these witnesses
have been heard here, and Kaltenbrunner was ill at the time.
THE PRESIDENT: What do you say about it, Sir David?
SIR DAVID MAXWELL-FYFE: I should suggest that Dr. Kauffmann
cross-examine Number 11, Höllriegel, and Number 12, Wisliceny, whom he
has not cross-examined so far. And then, if there is any special point
which remains to be dealt with by the witness Ohlendorf, Dr. Kauffmann
can make a special application to the Court.
THE PRESIDENT: Yes. Well, the Tribunal would like to know what position
you take about the defendants’ counsel seeing these witnesses and
discussing with them their evidence before they call them. I mean, there
is a distinction between cross-examination when defendants’ counsel
cannot see them and calling them as their own witnesses when they can
see them.
SIR DAVID MAXWELL-FYFE: Well, the Prosecution feel that they ought
simply to cross-examine witnesses that have been called by the
Prosecution, unless there are very special circumstances. I think that
Dr. Seidl showed special circumstances with regard to the case that he
mentioned of one witness in special relation to the Defendant Hess. But
as a general rule, the Prosecution submit that witnesses that they have
called should be cross-examined without prior consultation.
THE PRESIDENT: Well, Sir David, the Tribunal would like to know your
view. Of course, we are not deciding the point now, but we should like
to know your view as to whether it would be a proper course to allow the
defendants’ counsel to see the particular witness in the presence of a
representative of the Prosecution, because it may be that that would
lead to a shortening of the proceeding, because the defendants’ counsel
might after that not wish to cross-examine the witness any further.
SIR DAVID MAXWELL-FYFE: Well, I am afraid that would require discussions
with my colleagues on each particular witness. I am afraid I have not
covered that point; witnesses 11 and 12 were called by my American
colleagues and although I take the general position which I put before
the Tribunal, I have not discussed that point; but I shall be pleased to
discuss it with them and perhaps to inform the Tribunal later on in the
day.
Of course, you will appreciate the fact that there may be a special
point relating to a special witness that may come up in this connection.
DR. KAUFFMANN: Perhaps I can explain this. The witness Ohlendorf was
reserved for me for cross-examination. In accordance with an agreement
made with the American Prosecution, I dispensed with a cross-examination
of Ohlendorf and on this condition was allowed to speak to him. I think
it would be quite fair if I could do the same with other witnesses. I
forego the cross-examination and can speak to the witnesses beforehand.
Perhaps one or the other will turn out to be unnecessary.
THE PRESIDENT: I am not quite sure that you understand the view being
put to you, Dr. Kauffmann. The view is that when a witness is called on
behalf of the Prosecution the defendants’ counsel certainly have the
right to cross-examine the witness, not to see the witness beforehand,
but only to cross-examine him. If on the other hand they are entitled to
call that witness as their own, then they are entitled to see him
beforehand, which is. . .
DR. KAUFFMANN: Yes, that is what I mean. But if I am allowed to speak to
the witness beforehand, then the Court will understand that I should
like to avoid as far as possible the presence of a representative of the
Prosecution, since the reasons which might cause me to forego the
calling of a witness would then be known to the Prosecution. I think
everyone will understand that, and I also think it is fair.
THE PRESIDENT: I wanted to clarify what the difference in view between
you and the Prosecution is. The Prosecution said that when the witness
was called for the Prosecution the right of the defendants is only to
cross-examine. Can you help us further with respect to this group, Sir
David?
SIR DAVID MAXWELL-FYFE: Certainly. With regard to Eigruber, Number 8, he
is no longer in Nuremberg, and he is being held as a probable defendant
in the case concerning Mauthausen Camp, which will be dealt with by a
military court, and therefore the Prosecution suggests that in these
circumstances, as he is one of this group dealing with concentration
camps in general and Mauthausen in particular, he ought to be dealt with
by interrogatories.
Then with regard to Höttl, Number 9, he deals with two aspects of one
point, that is, that Kaltenbrunner on his own initiative ordered the
surrender of the concentration camp of Mauthausen and that he took steps
to induce Himmler to release people from concentration camps. These seem
to be general points that again might be conveniently dealt with by
interrogatories.
And the same applies to the witness Von Eberstein, who deals with the
point that Kaltenbrunner is alleged not to have given an order to
destroy the concentration camp at Dachau, and that he did not give an
order to evacuate Dachau. The Prosecution suggest that these ought also
to be interrogatories.
With regard to the next witness, Höllriegel, the Prosecution make no
objection to further cross-examination, and respectfully suggest to the
Tribunal that he will be able to deal with the question of Mauthausen,
which is one of the main questions that this whole group of witnesses is
called to deal with.
DR. KAUFFMANN: [_Interposing._] Maybe I can say something so that. . .
THE PRESIDENT: [_To Sir David Maxwell-Fyfe._] Are you in agreement with
Number 12, in the same group?
SIR DAVID MAXWELL-FYFE: Number 12 is not in the same group, because he
deals with the question of Kaltenbrunner’s relations with Eichmann and
with reports he received regarding the action against the Jews. We have
no objection to this witness being called for cross-examination, as Dr.
Kauffmann did not cross-examine him.
THE PRESIDENT: Yes, Dr. Kauffmann?
DR. KAUFFMANN: Concerning the witness Eigruber, Number 8, may I point
out that this witness is here in Nuremberg. However, I agree that
interrogatories be sent. The subject of the evidence itself seems to me
decidedly relevant, for what Eigruber is supposed to testify is neither
more nor less than the fact that the concentration camp at Mauthausen
was directly supervised by Himmler through Pohl and the commander of the
camp. Kaltenbrunner denies the possession of exact knowledge regarding
Mauthausen. The witness Höttl. . .
THE PRESIDENT: You were in error in saying he was here in town. Sir
David said he has been removed from Nuremberg for the purpose of trial
by a military court. So perhaps you would not object to interrogatories
in that case.
DR. KAUFFMANN: Yes. The witness Höttl is, in my opinion, an important
witness. As we know, Kaltenbrunner is also accused of having
participated in the conspiracy against the peace. Here I intend to prove
that Kaltenbrunner conducted an active peace campaign ever since 1943.
An important name in this connection is Mr. Dulles. He is, according to
Kaltenbrunner, the late President Roosevelt’s confidential agent. Mr.
Dulles was in Switzerland. According to Kaltenbrunner, meetings between
them constantly took place with this object. I believe that this subject
of evidence is relevant.
THE PRESIDENT: You mean that you want Dr. Höttl in person, not by way of
interrogatories?
DR. KAUFFMANN: Yes, if I may ask for that.
THE PRESIDENT: The Tribunal will consider that.
DR. KAUFFMANN: Witness Number 10, General of the Police Von Eberstein,
is called to prove that the statement of another witness by the name of
Gerdes is untrue. The Tribunal will perhaps remember that the
Prosecution submitted an affidavit by a man named Gerdes who was an
important figure in Munich. He was the confidential agent of the former
Gauleiter of Munich. In his affidavit, Gerdes accuses Kaltenbrunner of
ordering the destruction of Dachau through bombing. Kaltenbrunner
emphatically denies that.
THE PRESIDENT: That is a matter which could be clearly dealt with by
interrogatories, whether or not Kaltenbrunner did give an order to
destroy a concentration camp, or an order to evacuate Dachau. Surely
those are matters which admit of proof by interrogatories.
DR. KAUFFMANN: I agree. The same problem arises in connection with the
next witness, Number 11, the witness Höllriegel, who has already been
heard. Am I to have the opportunity of speaking to this witness before
he is cross-examined? Kaltenbrunner denies that he ever saw gas
chambers, _et cetera_.
THE PRESIDENT: Dr. Kauffmann, isn’t Number 11 really cumulative to
Number 6, whom you particularly wanted to call?
DR. KAUFFMANN: Yes, Mr. President, certainly.
THE PRESIDENT: Anyhow, the Tribunal will consider the question whether
you ought to be given the right merely to cross-examine or to recall as
your own witness, with reference to Numbers 11 and 12.
DR. KAUFFMANN: Yes. Just a word about witness Number 12. Eichmann, as is
well known, was the man who carried out the whole extermination
operation against the Jews, and Kaltenbrunner’s name has been mentioned
in connection with this operation. Kaltenbrunner denies it. For that
reason I consider Wisliceny a relevant witness.
THE PRESIDENT: That concludes that group. What about the other ones, Sir
David? Are they in the same category?
SIR DAVID MAXWELL-FYFE: Not quite, but I think it might be convenient if
I deal with them.
Dr. Mildner, Number 13, is sought to testify that Kaltenbrunner did not
authorize the chief of the Gestapo to sign orders for protective custody
or internment, and I should submit that in view of the previous
evidence, of Scheidler and Number 4, Neubacher, Dr. Mildner’s evidence
is cumulative and that interrogatories would suffice.
As to Schellenberg, Number 14, I have already said that the Prosecution
make no objection to his recall for cross-examination.
Finally, Dr. Rainer. We do object to that request, because the object of
his testimony, that Kaltenbrunner recommended to the Gauleiter of
Austria not to oppose the advancing troops of the Western Powers and not
to organize Werewolf movements, is in our submission irrelevant to the
issues before this Tribunal.
THE PRESIDENT: Yes. Dr. Kauffmann?
DR. KAUFFMANN: The witness Dr. Mildner, Number 13, is here in Nuremberg,
in custody. I have asked to call this witness because he has submitted
an affidavit containing certain accusations against Kaltenbrunner which
Kaltenbrunner denies. I do not think that an interrogatory can clear up
these difficulties.
Now, Number 14 . . .
THE PRESIDENT: Dr. Mildner had submitted an affidavit?
DR. KAUFFMANN: Yes, Sir. There is a reference in the Indictment to an
affidavit made by Dr. Mildner. I believe it was on 3 January. The
witness’ name was mentioned in connection with the charges against
Kaltenbrunner. There are one or two affidavits. . .
THE PRESIDENT: But if the affidavit has not been produced to the Court,
what have we got to do with it? We have not seen it, at least in my
recollection. You know about it, Sir David?
SIR DAVID MAXWELL-FYFE: I have not been able to trace this affidavit of
Dr. Mildner’s. I do not remember it, but I will willingly check the
reference that Dr. Kauffmann has given.
THE PRESIDENT: Of course, if the Prosecution have used the affidavit,
then you would have no objection to the witness being called for
cross-examination?
SIR DAVID MAXWELL-FYFE: Well, in general, no. The reason why I am rather
surprised is that usually that point has been taken when it is sought to
use the affidavit. The Defense Counsel involved has asked for the
production of the witness—but I will have it looked into, this
particular point; but in general the Tribunal may take it that unless we
put forward a special point, where an affidavit has been given, and
where we have not argued to the Court previously, it is a very good case
for the witness’s being brought here, if it is convenient.
THE PRESIDENT: I did not understand that Dr. Kauffmann was saying that
the affidavit had actually been put in by the Prosecution, but there was
some reference made to it. Is that right, Dr. Kauffmann?
DR. KAUFFMANN: It would not take me long to look it up. I have the files
for 3 January here.
THE PRESIDENT: Dr. Kauffmann, we will give you an opportunity for
looking that up. We will adjourn now for 10 minutes.
[_A recess was taken._]
DR. KAUFFMANN: The name of Mildner appears in the transcript of 2
January, not in the form of an affidavit but in the form of a letter
written by a third person and this letter is only mentioned in
connection with Mildner’s name; it is not an affidavit. I should like to
request that Mildner be interrogated in writing.
Now turning to witness Number 15 . . .
THE PRESIDENT: Fourteen?
DR. KAUFMANN: We have already dealt with Number 14.
THE PRESIDENT: Oh, you have already dealt with that? Very well, then 15.
DR. KAUFFMANN: Witness Number 15 is Rainer, who was a Gauleiter. I
should like to request that this witness be heard as well. He is in
Nuremberg. The subject of the evidence seems important to me. In the
case against Kaltenbrunner, he is not expressly charged with the
contrary; but if we are dealing with peace and violations of peace, an
effort on the part of the defendant to prove that he has done everything
in his power to prevent further bloodshed seems to me relevant.
THE PRESIDENT: Would an interrogatory satisfy you for that witness?
DR. KAUFFMANN: Yes, My Lord.
THE PRESIDENT: Yes.
DR. KAUFFMANN: I have not yet submitted any documents, Mr. President.
Later on, I may present some affidavits, but, as I have not yet received
them, I cannot present them at the moment.
THE PRESIDENT: The Tribunal understands, Dr. Kauffmann, that you wish to
reserve for yourself the right to apply to put in documents at a later
stage.
DR. KAUFFMANN: Yes, I request that.
THE PRESIDENT: The Tribunal will consider that and let you know when
they make the order.
Yes, Dr. Thoma?
SIR DAVID MAXWELL-FYFE: Dr. Thoma suggests that we deal with the
document list.
THE PRESIDENT: Very well.
SIR DAVID MAXWELL-FYFE: On the first six documents, which are quotations
from various books on philosophy, the Prosecution submit that they are
irrelevant to the question of the ideology propounded by the Defendant
Rosenberg, which the Prosecution make part of the case against him.
Of course, if the purpose is merely that Dr. Thoma would quote from such
books in making his speech, and if he would let us know the passages he
wants to quote so they can be dealt with mechanically, we do not make
any anticipatory objection.
I think that takes us up to Number 6—which are purely general books on
philosophy. The Prosecution view with some dismay all these books being
put in evidence and the Prosecutors having to read them.
I think I have made the position quite clear that if Dr. Thoma wishes to
use them to illustrate the argument, and if he lets us know the passage,
we make no general objection, but we object to their being put in as
evidence, as not being relevant to the matters before the Court.
DR. THOMA: I do not think that it is possible without a consideration of
world philosophy before Rosenberg’s time to understand the morbid
psychological state of the German people after their defeat in the first
World War. Unless this psychological condition is appreciated, it is
impossible to understand why Rosenberg believed that his ideas could
help them. I am extremely anxious to show that Rosenberg’s theories were
representative of a phase of contemporary philosophy taught in similar
form by many other philosophers both at home and abroad. I am extremely
anxious to refute the charges made against Rosenberg’s ideology as
degenerate and—I must quote the expression—a “smutty ideology.” I have
to bear in mind that the members of the Prosecution, especially M. De
Menthon, who has made a special study of the National Socialist
ideology, made the very natural mistake of confusing the extravagances
and abuses of this ideology, usually dubbed “Nazism,” with its real
philosophic content. The French Revolution of 1789 was in the same way,
I believe, represented by neighboring peoples as a disaster of the first
magnitude, and all the rulers in Europe were called upon to fight
against it.
I believe that the Court was specially impressed by M. De Menthon’s
statements, which represented the Nazi ideology as having no spiritual
value and described it as a dangerous doctrine. I think we must allow
the possibility of its being taught in other countries as well at that
time. I should like, therefore, to ask permission to present the
philosophical systems of the time in question, by which I mean the views
expressed by other philosophers on Rosenberg’s main concepts, especially
the question of blood or race, the soil as a fact of nature and as
political and economic living space. Science declares that these ideas
are based on the irrational presentation of natural and historical
facts. They cannot be dismissed for that reason as unscientific,
although they may be disturbing to rationalism and humanism.
I should like, in particular, to prove that these ideas have been
respected and developed by rational and empirical science on account of
their significance, and that they have been put into practice by other
countries in their policy—a fact which I think is important. I need
only remind you of the U.S.A. immigration laws, which also give
preference to particular races.
SIR DAVID MAXWELL-FYFE: As I understand Dr. Thoma, he wants to use the
teachings of other philosophers as illustrations and arguments. If he is
going to quote from them, then all that the Prosecution ask is that he
tell us which passages he is going to quote, but we suggest that it is
not relevant for us to go into an examination of, say, M. Bergson’s book
as a matter of evidence.
It is a perfectly clear distinction, and I suggest that Dr. Thoma will
be well able to develop the point which he has just put with the
limitation which I have just suggested.
THE PRESIDENT: Dr. Thoma, the Tribunal would like to know what it is
that you actually propose. Are you proposing to put in evidence certain
passages from certain books and that the Tribunal should read them or
are you simply asking for the production of books so that you may
consult them, read them, and then incorporate in your argument certain
ideas which you may gather from the books?
DR. THOMA: I ask the Tribunal to note—officially, at least—the
contents of the books which I shall submit. I shall not read all these
quotations from the books, but I shall ask the Tribunal to note the
outlines. I think it is important for the Tribunal to have the passages
quoted from these books actually before them, so that they may have a
clear picture of the philosophical—and particularly of the ethical
situation—of the German people after their defeat in the World War.
THE PRESIDENT: But the books are not books of any legal authority. You
can only cite, surely, to a court of international law, books that are
authorities on international law. You can, of course, collect ideas from
other books which you can incorporate in your argument. You cannot cite
them as authorities.
DR. THOMA: Gentlemen, by submitting quotations from the works of
well-known philosophers who presented ideas similar to Rosenberg’s, I
propose to prove that this ideology is to be taken quite seriously. In
the second place I want to prove that those features of Rosenberg’s
ideology which have been branded as immoral and harmful are
extravagances and abuses of this ideology; and in my opinion it is most
important for the Tribunal to know from a consideration of the history
of philosophy, that even the best ideas—such as the French
Revolution—can degenerate. I should like to point out these historical
parallels to National Socialism and to Rosenberg’s ideology.
I also need these books to prove that Rosenberg was concerned only with
the spiritual combating of alien ideology and that he was not in a
position to protest any more energetically against the brutal
application of his ideology in National Socialism, but that as a matter
of principle he allowed scientific discussions of his works to proceed
freely and never called in the Gestapo against his theological
opponents.
He assumed that his ethnic ideas were not to be carried through by
force, but that every people should preserve its own racial character
and that intermingling was only permissible in the case of kindred
races. He believed that this ideology was for the good of the German
people and in the interest of humanity generally.
For these reasons I believe that the Tribunal, in order to have a vivid
picture of the background of the development of National Socialism,
should inform itself of the spiritual conditions of that time.
THE PRESIDENT: The Tribunal will consider the argument you have
addressed to it.
SIR DAVID MAXWELL-FYFE: With regard to Document Number 7, that is,
excerpts from certain books, the first five are from Rosenberg’s own
works, and the last is a book by another author on Hitler.
Again I submit that if Dr. Thoma wants to support the thesis contained
in the first half of his note—that “the Defendant Rosenberg does not
see individual and race, individual and community, at contrast but
represents the new romantical conception that the personality finds its
perfection and its inner freedom by having the community of the racial
spirit developed and represented within itself”—if Dr. Thoma will give
any of the extracts from Rosenberg’s works on which he bases that
argument, then he can present them at whatever part of his case is
convenient; and similarly, with regard to the specific points set out in
the second part of his note—there again, if he will give the relevant
extracts, they can be considered and their relevancy for the purpose of
this Court dealt with when he introduces them in his presentation. But
again I take general objection to the fact that either the Court or the
Prosecution should read all these works and treat them as evidence. I
developed that about the previous document.
DR. THOMA: Gentlemen, if I quote Rosenberg’s actual words and ask the
Tribunal to take official notice of them, I shall be in the fortunate
position of being able to show that Rosenberg’s philosophy and ideology
differ basically from the extravagances and abuses which were attributed
to him and to which he took exception.
I am in a position to show that it is clear from his works that
Rosenberg intended the Leadership Principle to be restricted by a
special council exercising an authoritative, advisory function. I shall
also be able to show that the _Myth of the Twentieth Century_ was a
purely personal work of Rosenberg’s which Hitler did not by any means
accept without reserve. More especially, I am in a position to prove
that Rosenberg, as his works will show, would have nothing to do with
the physical destruction of the Jews and that, as far as his writings
show, he took no part in the psychological preparations for war and
that, as far as his writings show, he worked for a peaceful
international settlement, especially between the four great European
powers of the period. Therefore I beg the Tribunal to allow me to submit
the real, genuine quotations from his writings as evidence material.
THE PRESIDENT: Dr. Thoma, the Tribunal will consider the whole question
of the production of and the citation from these books.
SIR DAVID MAXWELL-FYFE: Number 8, My Lord, falls into a rather different
field. The first 11 documents seem to be books and writings containing
Jewish views of an antinational basis. The Prosecution reminds the
Tribunal that the questions at issue are: Did the defendants as
co-conspirators embark on a policy of persecution of the Jews; secondly,
did the defendants participate in the later manifestations of that
policy, the deliberate extermination of the Jews? Within the submission
of the Prosecution, it is remote and irrelevant to these important and
terrible accusations that certain Jewish writings, spread over a period
of years, contained matters which were not very palatable to Christians.
DR. THOMA: Gentlemen, I should like to reply to this point as follows: I
am not interested in showing that the Nazi measures against the Jews
were justified. I am interested only in making clear the psychological
reasons for anti-Semitism in Germany; and I think I am justified in
asking you to listen to some quotations of this kind taken from
newspapers, since they must by their very nature offend the patriotic
and Christian susceptibilities of very many people.
I must go rather more deeply into this question, too, in order to show
the reason for the existence of the so-called Jewish problem in history
and religion and the reason for the tragic opposition between Jewry and
other races. I should like to quote both Jewish and theological
literature on the point.
THE PRESIDENT: The Tribunal will consider the question.
SIR DAVID MAXWELL-FYFE: My Lord, I think the Tribunal can take the
remaining documents, 9 to 14, together. They seem to deal with specific
and, if I may say so without the least intention of offense, more
practical matters, in that they deal with the government of the Eastern
territories, for which this defendant was responsible; and the
Prosecution has no objection to my friend’s using these documents in
such a way as it seems fit to him.
DR. THOMA: I should like to mention the following points in connection
with the documents:
I have had four additional documents allowed in part by the Tribunal. I
have not been able to submit them, because they have not yet been handed
over to me; but I would like to tell the Tribunal what they are: First,
a letter written by Rosenberg to Hitler in 1924, containing a request by
Rosenberg not to be accepted as a candidate for the Reichstag; second, a
letter written by Rosenberg to Hitler in 1931 regarding his dismissal
from the post of editor in chief of the _Völkischer Beobachter_, the
reason being that Rosenberg’s _Myth of the Twentieth Century_ created a
tremendous stir among the German people. Rosenberg asked at the time
that his work be considered a purely personal work, something which it
actually was, and that if his writing was in any way detrimental to the
Party, he would ask to be released from his position as editor of the
_Völkischer Beobachter_; third, I should like to include a directive
from Hitler to Minister for the Eastern Occupied Territories Rosenberg,
dated June 1943, in which Hitler instructs Rosenberg to limit himself to
matters of principle; fourth, an eight-page letter from Hitler to
Rosenberg, written by hand and dating from the year 1925.
THE PRESIDENT: And the fourth one? Will you state the fourth one, the
fourth document?
DR. THOMA: I am coming to that.
Point 4—a letter written by Hitler to Rosenberg in 1925, in which
Hitler stated his reasons for refusing on principle to take part in the
Reichstag elections. Rosenberg’s view at that time was that the Party
should enter the Reichstag and co-operate practically with the other
parties.