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    Nazi Conspiracy and Aggression, Volume 2, Chapter 15


The following argument on the law and policy involved in the
prosecution's charge that certain Nazi groups and
organizations should be declared criminal, was delivered by
Justice Jackson before the Tribunal on 28 February 1946.

May it please the Tribunal:

The unconditional surrender of Germany created, for the
victors, novel and difficult problems of law and
administration. Since it is the first such surrender of an
entire and modernly organized society, precedents and past
experiences are of little help in guiding our policy toward
the vanquished. The responsibility implicit in demanding and
accepting capitulation of a whole people must of necessity
include a duty to discriminate justly and intelligently
between opposing elements of the population which bore
dissimilar relations to the policies and conduct which led
to the catastrophe. This differentiation is the objective of
those provisions of the Charter which authorize this
Tribunal to declare organizations or groups to be criminal.
Understanding of the problem which the instrument attempts
to solve is essential to its interpretation and application.

A. The Problem of the Nazi Organizations.

One of the sinister peculiarities of German society at the
time of the surrender was that the State itself played only
a subordinate role in the exercise of political power, while
the really drastic controls over German society were
organized outside its nominal government. This was
accomplished through an elaborate network of closely knit
and exclusive organizations of selected volunteers oath-
bound to execute, without delay and without question, the
commands of the Nazi leaders.

These organizations penetrated the whole German life. The
country was subdivided into little Nazi principalities of
about 50 households each, and every such community had its
recognized party leaders, party police, and its undercover
party spies. These were combined into larger units with
higher ranking leaders, executioners and spies. The whole
formed a pyramid of power out-

                                                    [Page 2]
side the law, with the Fuehrer at its apex, and with the
local party officials as its broad base resting heavily on
the German population. The Nazi despotism, therefore, did
not consist of these individual defendants alone. A thousand
little fuehrers dictated, a thousand imitation Goerings
strutted, a thousand Schirachs incited the youth, a thousand
Sauckels worked slaves, a thousand Streichers and Rosenbergs
stirred hate, a thousand Kaltenbrunners and Franks tortured
and killed, a thousand Schachts and Speers and Funks
administered, financed, and supported the movement. The Nazi
movement was an integrated force in city and county and
hamlet. The party power resulting from this system of
organizations first rivaled, and then dominated, the power
of the State itself.

The primary vice of this web of organizations was that they
were used to transfer the power of coercing men from the
government and the law to the Nazi leaders. Liberty, self-
government, and security of persons and property do not
exist except where the power of coercion is possessed only
by the State and is exercised only in obedience to law. The
Nazis, however, set up a private system of coercion, outside
of and immune from law, with party-controlled concentration
camps and firing squads to administer privately decreed
sanctions. Without responsibility to law and without warrant
from any court, they were enabled to seize property, take
away liberty, and even take life itself.

These organizations had a calculated and decisive part in
the barbaric extremes of the Nazi movement. They served
cleverly to exploit mob psychology and to manipulate the
mob. Multiplying the numbers of persons in a common
enterprise tends to diminish each individual's sense of
moral responsibility and to increase his sense of security.
The Nazi leaders were masters of this technique. They
manipulated these organizations to make before the German
populace impressive exhibitions of numbers and of power.
These were used to incite a mob spirit and then riotously to
gratify the popular hates they had inflamed and the Germanic
ambition they had inflated.

These organizations indoctrinated and practiced violence and
terrorism. They provided the systematized, aggressive, and
disciplined execution throughout Germany and the occupied
countries of the whole catalogue of crimes we have proven.
The flowering of the system is represented in the fanatical
SS General Ohlendorf, who told this Tribunal without shame
or trace of pity how he personally directed the putting to
death of 90,000 men, women, and children. No tribunal ever
listened to a recital of

                                                    [Page 3]
such wholesale murder as this Tribunal heard from him and
from Wisliceny a fellow officer of the SS. Their own
testimony shows the responsibility of the SS for the
extermination program which took the lives of five million
Jews, a responsibility the organization welcomed and
discharged methodically, remorselessly, and thoroughly.
These crimes are unprecedented ones because of the shocking
numbers of victims. They are even more shocking and
unprecedented because of the large number of persons who
united to perpetrate them. All scruple or conscience of a
very large segment of the German people was committed to
Nazi keeping, and its devotees felt no personal sense of
guilt as they went from one extreme measure to another. On
the other hand, they developed a contest in cruelty and a
competition in crime. Ohlendorf from the witness stand
accused other SS commanders, whose killings exceeded his, of
"exaggerating" their figures. There could be no justice and
no wisdom in an occupation policy which imposed upon passive
and unorganized and inarticulate Germans the same burdens as
it placed upon those who voluntarily banded themselves
together in these powerful and notorious gangs. One of the
basic requirements, both of justice and of successful
administration of the occupation responsibility of the
victors, is a segregation of these organized elements from
the masses of Germans for separate

It seems beyond controversy that to punish a few top leaders
but to leave this web of organized bodies unscotched in the
midst of German postwar society, would be to foster the
nucleus of a new Nazidom. The members are accustomed to an
established chain of centralized command; they have formed a
habit and developed a technique of both secret and open
cooperation. They still nourish a blind devotion to the
suspended, but not abandoned, Nazi program. They will keep
alive the hates and ambitions which generated the orgy of
crime we have proved. They are carriers, from this
generation to the next, of the infection of aggressive and
ruthless war. The Tribunal has seen on the screen how easily
an assemblage that ostensibly is only a common labor force
can be in fact a military training unit drilling with
shovels. The next war and the next pogroms will be hatched
in the nests of these organizations as surely as we leave
their membership with its prestige and influence
undiminished by condemnation and punishment.

The menace of these organizations is the more impressive
when we consider the demoralized state of German society. It
will be years before there can be established in the German
State any Political authority that is not inexperienced and
provisional. It

                                                    [Page 4]
cannot quickly acquire the stability of a government aided
by long habit of obedience and traditional respect. The
intrigue, obstruction, and possible overthrow, which older
and established governments fear from conspiratorial groups,
is a real and present danger to any stable social order in
the Germany of today and of tomorrow.

Insofar as the Charter of this Tribunal contemplates a
justice of retribution, it is obvious that it could not
overlook these organized instruments and instigators of past
crimes. In opening this case, I said that the United States
does not seek to convict the whole German people of crime.
But it is equally important that this trial shall not serve
to absolve the whole German people except 22 men in the
dock. The wrongs that have been done to the world by these
defendants and their top confederates was not done by their
will or by their strength alone. The success of their
designs was made possible because great numbers of Germans
organized themselves to become the-fulcrum and the lever by
which the power of these leaders was extended and magnified.
If this trial fails to condemn these organized confederates
for share of responsibility for this catastrophe, it will be
construed as their exoneration.

But the Charter was not concerned with retributive justice
alone. It manifests a constructive policy influenced by
exemplary and preventive considerations. The primary
objective of requiring that the surrender be unconditional
was to clear he way for reconstruction of German society on
such a basis that it will not again threaten the peace of
Europe and of the world. Temporary measures of the
occupation authorities may, by necessity, have been more
arbitrary and applied with less discrimination than befits a
permanent policy. Under existing denazification policy, no
member of the Nazi party or its formations may be employed
in any position, other than ordinary labor, or in any
business enterprise unless he is found to have been only a
nominal Nazi. Persons in certain categories, whose standing
in the community is one of prominence or influence, are
required to meet this standard, and those who do not may be
denied further participation in their businesses or
professions. It is mandatory to remove or exclude from
public office, and from positions of importance in quasi
public and private enterprises, persons falling within
approximately 90 specified categories deemed to consist of
either active Nazis, Nazi supporters, or militarists. The
property of such persons is blocked.

It is recognized by the Control Council, as it was by the
framers of the Charter, that a permanent, long-term program
should be

                                                    [Page 5]
based on a more careful and more individual discrimination
than was possible with sweeping temporary measures. There is
a movement now within the Control Council for
reconsideration of its whole denazification policy and
procedure. The action of this Tribunal in declaring, or in
failing to declare, the accused organizations criminal has a
vital bearing on future occupation policy.

It was the intent of the Charter to utilize the hearing
processes of this Tribunal to identify and condemn those
Nazi and militaristic forces that were so organized as to
constitute a continuing menace to the long-term objectives
for which our respective countries have spent the lives of
their young men. It is in the light of this great purpose
that we must examine the provisions of the Charter.

B. The Procedure for Condemning Organizations.

It was obvious that the conventional litigation procedures
could not, without some modification, be adapted to this
task. No system of jurisprudence has yet evolved any
satisfactory technique for handling a great multiplicity of
common charges against a multitude of accused persons. The
number of individual defendants that fairly can be tried in
a single proceeding probably does not greatly exceed the
number now in your dock. Moreover, the number of separate
trials in which the same voluminous evidence as to common
plan must be repeated is very limited as a practical matter.
Yet adversary hearing procedures are the best assurance the
law has evolved that decisions will be well considered and
just. The task of the framers of the Charter was to find a
way to overcome these obstacles to practicable and early
decision without sacrificing the fairness implicit in
hearings. The solution prescribed by the Charter is
certainly not faultless, but not one of its critics has ever
proposed an alternative that would not either deprive the
individual of any hearing or contemplate such a multitude of
long trials as to be impracticable. In any case, it is the
plan adopted by our respective governments and our duty here
is to make it work.

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