Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-70.04
Last-Modified: 1999/11/22

The Prosecution does not feel that there is evidence of the
severability of any class or classes of persons within the
organizations accused which would justify any further
concessions, and that no other part of the named groups
should be excluded. In this connection, we would again
stress the principles of conspiracy. The fact that a section
of an organization itself committed no criminal act, or may
have been occupied in technical or administrative functions,
does not relieve that section of criminal responsibility if
its activities contributed to the over-all accomplishment of
the criminal enterprise. I should like to discuss the
question of the further steps to be taken before this
Tribunal.

Over 45,000 persons have joined in communications to the
Tribunal asking to be heard in connection with the
accusations against organizations. The volume of these
applications has caused apprehension as to further
proceedings. No doubt there are difficulties yet to be
overcome, but my study indicates that the difficulties are
greatly exaggerated.

The Tribunal is vested with wide discretion as to whether it
will entertain an application to be heard. The prosecution
would be anxious, of course, to have every application
granted that is necessary, not only to do justice, but to
avoid appearance of doing anything less than justice. And we
do not consider that expediting this trial is so important
as affording a fair opportunity to present all really
pertinent facts.

Analysis of the conditions which have brought about this
flood of applications indicates that their significance is
not proportionate to their numbers. The Tribunal sent out
200,000 printed notices of the right to appear before it and
defend. They were sent to allied prisoner of war and
internment camps. The notice was published in all German
language papers and was repeatedly broadcast over the radio.
Investigation shows that the notice was posted in all
barracks of the camps and it also shows that in many camps
it was in addition, read to the prisoners. The 45,000
persons who responded with applications to be heard came
principally from about fifteen prisoner of war and
internment camps under British or United States control.
Those received included an approximate 112,000 from Dachau,
10,000 from Langwasser, 7,500 from Auerbach, 4,000 from
Staumahle, 2,500 from Garmisch, and several, hundred from
each of the others.

                                                   [Page 49]

We have made some investigation of these applications, as
well as of the sending out of the notices and we would be
glad to place any information that we have at the disposal
of the Tribunal.

An investigation was made of the Auerbach camp in the United
States zone, principally to determine the reason for these
applications and the method by which they came. That
investigation was conducted by Lt.-Colonel Smith Brookhart,
Captain Drexel Sprecher and Captain Krieger, all of whom are
known to this Tribunal.

The Auerbach camp is for prisoners of war, predominantly SS
members. Its prisoners number 16,964 enlisted men and 923
officers. The Notice of the International Tribunal was
posted in each of the barracks and was read to all inmates.
All applications to the Tribunal were forwarded without
censorship of any kind. Applications to defend were made by
7,500 SS members.

Investigation indicates that these were filed in direct
response to the notice and that no action was directed or
inspired from any other source within or without the camp.
All who were interrogated professed that they had no
knowledge of any SS crimes or of SS criminal purposes, but
they expressed interest only in their individual fate,
rather than any concern to defend the organization.

Our investigators report no indication that they had any
additional evidence or information to submit on the general
question of the criminality of the SS as an organization.
They seemed to think it was necessary to make the
application here, in order to protect themselves.

Turning then to examination of the applications, these, on
their face value indicate that most of the members do not
profess to have evidence on the general issue triable here.
They assert almost without exception that the writer has
neither committed nor witnessed nor known of the crimes
charged against the organization. On a proper definition of
the issues such an application is insufficient on its face
value, to warrant a personal intervention.

A careful examination of the notice to which these
applications respond will indicate, I believe, that the
notice contains no word which would inform a member,
particularly if he were a layman, of the narrowness of the
issues which are to be considered here, or that he will have
a later opportunity, if and when prosecuted, to present
personal defences. On the other hand the notice, it seems to
me, creates the impression, particularly to a layman, that
every member may be convicted and punished by this Tribunal
and that his only chance to be heard is here. I think a
careful examination of these notices will bear out that
impression and a careful examination of the applications
will show that they are in response to that impression.

Now, among lawyers there is usually a difference of opinion
as to how best to proceed, and this case presents no
exception: there are different ideas. But I shall advance
certain views as to how we should proceed from here to
obtain a fair and proper adjudication of these questions.

In view of these facts, we suggest a consideration of the
following programme for completion of this trial as to
organizations.

1. That the Tribunal formulate and express in an order, the
scope of and the limitations on the issues to be heard by
it.

2. That a notice adequately informing members as to the
limitation of the issues and the opportunity later to be
individually tried, be sent to all applicants and published
in the same manner as the original notice.

3. That a panel of masters be appointed, as authorized in
Article 17 (e) of the Charter, to examine applications and
to report those that are insufficient on their own
statements, and to go to the camps and supervise the taking
of any relevant evidence, Defence counsel and prosecution
representatives should, of course, attend and be heard
before the masters. The masters should reduce any evidence
to deposition form and report the whole to this Tribunal, to
be introduced as a part of its record.

                                                   [Page 50]

4. The representative principle may also be employed to
simplify the task. Members of particular organizations in
particular camps might well be invited to choose one or more
to represent them in presenting evidence.

It may not be untimely to remind the Tribunal and the
defence counsel that the prosecution has omitted from
evidence many relevant documents which show repetition of
crimes by these organizations, in order to save time by
avoiding cumulative evidence. It is not too much to expect
that cumulative evidence of a negative character will
likewise be limited.

Some concern has been expressed as to the number of persons
who might be affected by the declarations of criminality
which we have asked. Some people seem more susceptible to
shock from a million punishments than to shock from five
million murders. At most the number of punishments will
never catch up with the number of crimes. However, it is
impossible to state, even with approximate accuracy, the
number of persons who might be affected by the Declaration
of Criminality for which we have asked.

Figures from the German sources seriously exaggerate the
number, because they do not take account of heavy casualties
in the latter part of the war, and make no allowance for
duplication of membership which was large. For example, the
evidence is to the effect that seventy-five per cent. of the
Gestapo men were also members of the SS. We know that the
United States forces have, at a rough estimate 130,000
detained persons who appear to be members of accused
organizations. I have no figure from other Allied forces.
But how many of these actually would be prosecuted, instead
of being dealt with under the denazification programme, no
one can foretell. Whatever the number, of one thing we may
be sure - it is so large that a thorough inquiry by this
Tribunal, into each case, would prolong its session beyond
endurance. All questions as to whether individuals or sub-
groups of accused organizations should be excepted from the
Declaration of Criminality, should be left for local courts,
located near the home of the accused and near the source of
evidence. These courts can work in one or at most in two
languages, instead of four, and can hear evidence which both
parties direct to the specific issues.

This is not the time to review the evidence against each
particular organization which, we take it, should be
reserved for summation after the evidence is all presented.
But it is timely to say that the selection of the six
organizations named in the Indictment was not a matter of
chance. The chief reasons they were chosen are these:
collectively they were the ultimate repositories of all
power in the Nazi regime; they were not only the most
powerful, but the most vicious organizations in the regime;
and they were organizations in which membership was
generally voluntary.

The Nazi Leadership Corps consisted of the directors and
principle executors of the Nazi Party, and the Nazi Party
was the force lying behind and dominating the whole German
State. The Reich Cabinet was the facade through which the
Nazi Party translated its will into legislative,
administrative, and executive acts. The two pillars on which
the security of the regime rested were the armed forces,
directed and controlled by the General Staff and High
Command, and the police forces - the Gestapo, the SA, the
SD, and the SS. These organizations exemplify all the evil
forces of the Nazi regime.

These organizations were also selected because, while
representative, they were not so large or extensive as to
make it probable that innocent, passive, or indifferent
Germans might be caught up in the same net with the guilty.
State officialdom is represented, but not all the
administrative officials, department heads or civil
servants; only the Reich Cabinet, the very heart of Nazidom
within the Government, is named. The armed forces are
accused, but not the average soldier or officer, no matter
how high-ranking. Only the top policy makers - the General
Staff and the High Command - are named. The police forces
are accused - but not every policeman, not the ordinary
police which performed only the

                                                   [Page 51]

normal police duties. Only the most terroristic and
repressive police elements - the Gestapo and SD - are named.
The Nazi Party is accused - but not every Nazi voter, not
even every member, only the leaders. And not even every
Party official or worker is included; only "the bearers of
sovereignty," in the metaphysical jargon of the Party, who
were the actual commanding officers and their staff officers
on the highest levels.

I think it is important that we observe, in reference to the
Nazi Party, just what it is that we are doing here and
compare it with the denazification programme in effect
without any Declaration of Criminality, in order to see in
its true perspective the Indictment which we bring against
the Nazi Party.

Some charts have been prepared. These are mere graphic
representations of the proportion of persons that we have
accused and which we ask this Tribunal to declare as
constituting criminal organizations.

In the first column are the seventy-nine million German
citizens. We make no accusation against the citizenry of
Germany. The next is the forty-eight million voters, who at
one time voted to keep the Nazi Party in power. They voted
in response to the referendum. We make no charge against
those who supported the Nazi Party, although in some aspects
of the denazification programme the supporters are included.
Then come the five million Nazi members, persons who
definitely joined the Nazi Party by an act of affiliation,
by an oath of fealty. But we do not attempt to reach that
entire five million persons, although I have no hesitation
in saying that there would be good grounds for doing so; but
it is not practicably possible to reach all of those who are
technically and perhaps morally well within the confines of
this conspiracy. So the voters are disregarded, the forty-
eight million; the five million members are disregarded and
the first that we propose to deal with are the Nazi leaders,
starting with Blockleiter, who are shown in the last small
block, and grouped together, amounting to the fourth block
on the diagram.

It is true that we start with the local Blockleiter, but he
had responsibilities; responsibilities for herding into the
fold his fifty households; responsibilities for spying upon
them and reporting their activities; responsibilities, as
this evidence shows, for disciplining them and for leading
them. No political movement can function in the drawing
rooms and offices. It has to reach the masses of the people
and these Blockleiter were the essential elements in making
this programme effective among the masses of the people and
in terrorizing them into submission.

I submit that on this diagram, the accusation which we bring
here is a moderate one, reaching only persons of admitted
leadership responsibilities and not trying to reach people
who may have been beguiled into following in an unorganized
fashion.

We have also accused the formations, Party formations, such
as the SA and the SS. These were the strong arms of the
Party. These were the formations that the Blockleiter was
authorized to call in to help him if he needed to discipline
somebody in his block of fifty houses.

But we do not accuse every one of the formations of the
Party, nor do we accuse any of the twenty or more supervised
or affiliated Party groups, Nazi organizations in which
membership was compulsory, either legally or in practice,
such as the Hitler Youth and the Student League. We do not
accuse the Nazi professional organizations, although they
were Nazi dominated, like the Civil Servants Organization,
the Teachers Organization and the National Socialist Lawyers
Organization, although I should show them as little charity
as any group. We do not accuse any Nazi organizations which
have some legitimate purpose, like welfare organizations.
Only two of these Party formations are named, the SA and the
SS, the oldest of the Nazi organizations, groups which had
no purpose other than carrying out the Nazi schemes and
which actively participated in every crime denounced by the
Charter, and furnished the manpower for most of the crimes
which we have proved.

                                                   [Page 52]

In administering preventive justice with a view to
forestalling repetition of these Crimes against Peace,
Crimes against Humanity and War Crimes, it would be a
greater catastrophe to acquit these organizations than it
would be to acquit the entire twenty-one individual
defendants in the box. These defendants' power for harm is
past. They are discredited men. That of these organizations
goes on. If these organizations are exonerated here the
German people will infer that they did no wrong and they
will easily be regimented in reconstituted organizations
under new names behind the same programme.

In administering retributive justice it would be possible to
exonerate these organizations only by concluding that no
crimes have been committed by the Nazi regime. For these
organizations' sponsorship of every Nazi purpose and their
confederation to execute every measure to attain these ends
is beyond denial. A failure to condemn these organizations
under the terms of the Charter can only mean that such Nazi
ends and means cannot be considered criminal and that the
Charter of the Tribunal declaring them so is a nullity.

I think my colleagues, who have somewhat different aspects
of the case to deal with, would like to be heard on this
subject.

THE PRESIDENT: Mr. Justice Jackson and Sir David Maxwell
Fyfe, the Tribunal thinks the most convenient course would
be to hear argument on behalf of all the chief prosecutors
and then to hear argument on behalf of such of the
defendants' counsel as wish to be heard, and after that the
Tribunal will probably wish to ask some questions of the
chief prosecutors.

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

SIR DAVID MAXWELL FYFE: May it please the Tribunal: Mr.
Justice Jackson has dealt with the general principles under
which the organizations named in the Charter should, in the
view of the prosecution, be dealt with. It is not my purpose
to repeat or even to underline his arguments. My endeavour
is to comply with paragraph 4 of the statement of the
Tribunal made on 14th January of this year. This involves:-

(a) Summarizing in respect of each named organization, the
elements which, in our opinion, justify the charge of their
being criminal organizations. For convenience, I shall refer
to these as the elements of criminality.

(b) Indicating what acts on the part of individual
defendants in the sense used in Article 9 of the Charter
justified declaring the groups or organizations of which
they are members to be criminal organizations. Again for
convenience, I shall refer to such defendants in the wording
of the Charter, as connected defendants.

(c) I shall submit that what I have put forward in writing
under (a) and (b) will form the necessary summary of
proposed findings of fact under the Tribunal's third point.

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