The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventieth Day: Thursday, 28th February, 1946
(Part 7 of 9)


[Page 61]

According to the Charter on the question of declaring an organization criminal, the Tribunal will decide in connection with individual defendants. Article 9 states that in examining the materials with regard to each defendant, the Tribunal shall have the right to declare - and so on. Therefore, the conclusion is that the facts which decide the solution of the question as to whether an organization is or is not criminal, consist of whether there is before us today among the defendants a representative of this or that organization. It is well known in the present trial that all the organizations which the prosecution wants to be declared criminal are represented on the bench of the defendants. For that reason alone, there has passed through the hands of the Tribunal a great deal of material and evidence relating to the criminal nature of the organizations which these defendants have represented, that can be used by the Tribunal to draw a conclusion as to the criminal character of various organizations. Under such conditions, the necessity of calling special witnesses to testify about this or that organization can arise only as a source of supplementary and even eventual evidence. And even then, the Tribunal has stated in Article 9 that it is for the Tribunal to acquiesce in or to refuse the calling of witnesses or the introduction of supplementary evidence. It is impossible to deny the possibility or the necessity of supplementary evidence with regard to any criminal organization. The Charter of the Tribunal states very definitely that after the indictment has been made, the Tribunal will do that which it considers necessary with regard to the prosecution's request for declaring this or that organization criminal. Any member of an organization has a right to request that the Tribunal permit him to be heard on whether the organization was criminal. However, this was introduced into the Charter of the Tribunal for the sake of justice. It now appears that this article is used for other purposes. If what has been provided for in Article 9 extends widely enough, and if it already provides for calling witnesses with regard to the criminality of this or that organization, in substance the evidence submitted by the prosecutors of the four countries has already given enough exhaustive reasons for the Tribunal to recognize the organizations indicated in the indictment as criminal. At the same time it seems expedient that the Tribunal should make known Article 10 of the Charter, explaining that to declare an organization criminal does not necessarily lead to an automatic bringing to trial of all members of that organization without exception. It means that all questions about bringing any member to trial and about the responsibility of individual members will be decided by the National Tribunals.

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

[Page 61]

THE PRESIDENT: Have the defendants' counsel arranged among themselves in what order they wish to be heard ?

DR. KUBUSCHOK (counsel for the Reichsregierung): As counsel for the Reichsregierung, which has first place in the Indictment as a "criminal organization," I have, according to the decision of the Court, the duty of giving my opinion in regard to the presentation of evidence. Since, in so doing, I have to discuss general points of view which affect in the same way all the six organizations under indictment, it is probable that my statements will in the main, constitute the opinion of other defendants' counsel. However, they reserve for themselves the right to express particular and supplementary opinions.

The defence understands the decision of the Court of 14th January, 1946, to mean that at this stage of the procedure the defence should not produce detailed arguments against the indictment as it has been lodged by the prosecution and as it has been explained today, or against the concept of criminal organizations in the sense of the Charter, or against other hypotheses of a declaration of criminality, but should only express its opinion on the question of what evidence is relevant and how the evidence shall be presented. Therefore, I shall speak about the basic questions only insofar as this seems necessary today in this particular connection. First of all, I shall speak about the contents and the effect of the verdict asked for.

The six organizations under indictment are, according to the request of the prosecution, to be declared criminal organizations in their entirety. A request of that kind and the proceedings required by it would represent, in the jurisprudence of all States, something unheard of.

As we know, this request is not uninfluenced by the fact that, contrary to other nations, in England and even more so in the United States, even companies and corporations as such can be prosecuted in some cases, for reasons of expediency. This is a legal development called for by the dominant position which companies and corporations have acquired above all else in economic life.

This position made their punishment seem desirable in certain cases. They were affected by this punishment, however, only to the extent to which they could be affected in their economic sphere, that is to say, by the imposition of fines. This also concerns only definite offences, mostly in the field of administrative law.

The American Chief Prosecutor and the other Chief Prosecutors have cited a large number of precedents, even from German jurisprudence, in which organizations are said to have been declared criminal. In these precedents - and that is the decisive factor - the defendants convicted as criminals were always individual persons, never organizations as such. But a criminal procedure such as this one, would have to deal most seriously with the organizations as such, as well as with all the members who are not indicted personally, that is - I now refer to Law No. 10 of the Allied Control Council - would have to pronounce the most severe sentence, the sentence of death; such a procedure has never yet in the history of jurisprudence been applied.

The organizations under indictment are organizations which differ greatly in their structure. I do not have to discuss further today whether they always represented an organized unit. For this trial the essential thing is that the organizations under indictment have been dissolved by a law of the Military Government, and therefore, no longer exist. What still exists are only the individual former members, who, therefore, in reality are the actual defendants and have simply been brought together under the name of the former organization as a collective designation.

But independently of this question of the non-existence of the organizations, it can be seen from the outcome of the procedure that this is indeed a collective procedure against the individual members of the organization, and this for the following reasons:-

First, to declare an organization criminal means the outlawing and branding as criminal, not only of the organization as such, but, above all, of each individual

[Page 62]

member. Such a declaration, therefore, means a final sentencing of each individual member to a general loss of honour. The effect of this outlawing and branding is unavoidable and ineradicable, especially if that verdict is pronounced by so important a Court as the International Military Tribunal before the forum of the world. The effect of the outlawing would apply to each member of the organization and would cling to him, regardless of whether the subsequent proceedings, as provided for in Article 10 of the Charter, were carried out against the individual members or not.

Second, in respect to legal procedure, the verdict that has been asked for provides the possibility of a criminal penalty for each individual member of the organization. In the subsequent proceedings, according to Article 10 of the Charter, the criminal character of the organization will be considered conclusively determined.

In execution of this, Law No. 10 of the Allied Control Council of 20th December, 1945, has in the meantime been issued. According to this law, the mere fact of having been a member of an organization which has been declared criminal by the International Military Tribunal, renders liable to punishment as a criminal each individual member. Penalties ranging from the highest fines to compulsory labour for life and the death penalty are provided.

The proceedings according to Law No. 10 are concerned only with determining membership, and bases the punishment on this. In these proceedings, only grounds for personal exoneration, such as irresponsibility, error or coercion can be discussed. But these concern only the membership as such and will apply only in a very few cases.

Whatever concerns the character of the organization, the criminal aims and actions of members of the organization, especially the individual member's knowledge of these, all these are matters which will not be discussed any more in the proceedings according to Law No. 10. In the proceedings against the organizations, a binding declaration has been made. Therefore, the proceedings against the organizations anticipate the most important part of the proceedings against every individual member, while the subsequent proceedings, according to Law No. 10, to all intents and purposes only draw conclusions.

In connection with the question of the effect of the verdict, the numerical aspect should also be touched upon.

The SA at the beginning of the war in 1939 had about two and a half million active members, to which should be added, let us say, one to two million representing those who during the preceding eighteen years either had left the SA or had to leave because of their military service; making a total of about four and a half millions.

As far as the SS is concerned, my colleagues have not yet been able to give a final estimate. It will have to be considered that the Waffen SS alone had an active membership of several hundred thousand men at any given time. If we take into account the losses due to the war, which were very considerable, but which to a certain extent were assessed in the proceedings, we find in the case of the SS as well that the figure runs into millions.

The Leadership Corps always had, after 1933, a fixed membership of about six to seven hundred thousand members. Changes in the official personnel were very frequent. We have to take into account two complete turn-overs during the entire period, so that here also the complete figure will be about two million.

The entire figure covered by these proceedings is therefore very large. The reduction which the Tribunal has today thought fit to make, would not reduce that number to any very large extent. Basically, it will certainly make no difference whether this very large number which I have just mentioned is to include a half, a third or a quarter of the adult male population of Germany. If we consider the war losses among these age groups, we can say with great certainty that the Indictment will actually include a very considerable part of the adult male German population.

[Page 63]

I shall speak now about the concept "criminal organization." The necessary condition for an organization to be declared criminal is the criminal character, as appears in Article 9, Paragraph 2, of the Charter. The Charter does not interpret either the concept "criminal character" or that of "criminal organization." If we ask by means of which legal system this gap in the Charter should be filled, then, according to the general principle of lex loci, German Law first of all has to be considered. But that is of no avail, because these two concepts, according to every legal code in the world, also represent a terra nova in criminal law. Here too, the defence reserves for itself the right to express its well- founded opinion at the time of the final pleadings.

In any case we are of the opinion that within the framework of the Charter's validity and because of the far-reaching consequences already mentioned, the declaration asked for can be made justly and fairly only if (1) the original purpose that is, the constitution or the charter of the organization - was directed to the commission of crimes in the sense of Article 6 of the Charter, and if this purpose was known to all members; (2) the original purpose of the organization was not criminal, if all members during a certain period of time provingly participated in the planning and perpetration of crimes in the sense of Article 6 of the Charter. Here, also, it is necessary that the development should have been such that these crimes represent typical actions of the organization, for only then can we speak of a criminal nature as applicable to an organization as well as to an individual human being.

According to this interpretation, the concept "criminal organization" in the sense of Articles 9 to 11 of the Charter is in largely identical with the concept "criminal conspiracy" which plays an important role in the former German and Italian criminal law; also with the concept "conspiracy," with or without action for its execution, in English or American common law; also with the concept "Mordkomplott " (conspiracy for the purpose of committing murder) in the sense of Paragraph 49-b of the German Penal Code; and, finally, with the concept of a Common Plan or Conspiracy in the sense of Article 6 of the Charter, here also with or without action for its execution.

All these penal codes have in common that judgement can be delivered only against those persons who have taken part in the criminal organization knowing its purpose.

In my opinion, negligence cannot be sufficient when passing judgement subjectively, because of the general principle that in cases of serious crimes, and in this case the penalty may be death, there must always be full proof, and that negligence cannot be sufficient. Therefore, as a matter of principle, it has to be required in these present proceedings that an organization under indictment can be declared criminal only if it has been ascertained that, firstly, the aims of the organization were criminal in the sense of Article 6 of the Charter, and, furthermore, that all members at least knew of these criminal aims. This is also necessary for the reason that, as has just been said, this trial before the International Military Tribunal represents the essential main part of the criminal proceedings which will ascertain the guilt of each individual member of the organizations.

Justice does not permit that those members who did not possess the afore-mentioned knowledge, and who are, therefore, innocent be included in a verdict.

This will not lead to that consequence mentioned by Mr. Justice Jackson, namely, that a rejection of the verdict would mean a triumph for those who are guilty. I am of the opinion that the guilty ones, regardless of their number, should be brought to punishment.

Despite all considerations of expediency, the issue should not be that along with the guilty ones an enormous number of innocent persons also be punished.

Therefore, to come to the core of the question, this is to be regarded as relevant. The relevancy and admissibility of evidence depends on a definition of the criminal organization and of its criminal character, and on the basis of my definition

[Page 64]

I contend that the following points are relevant:-
(a) That the organizations, according to their constitution or statutes, did not have a criminal composition and did not pursue any criminal aims in the sense of Article 6 of the Charter.

(b)That within the organization, on in connection with it, crimes in the sense of Article 6 were not, or at least not continuously, committed during a certain period of time.

(c) That a certain number of members had no knowledge of any possible criminal constitution or criminal purpose, or the continuous commission of crimes according to Article 6, and that they also did not approve of these facts.

(d) That a certain number of members or certain independent groups joined by these organizations under compulsion or pressure or as the result of deception or by order from higher authorities.

(e) That a certain number of members without any action on their part, became members of these organizations through the bestowal of honorary membership.

Since I know that the questions to be decided represent a terra nova in the field of criminal law, I believe that in the course of the presentation of evidence we shall receive many other suggestions, Therefore, it will be expedient it the Tribunal at the present stage of the trial does not bind and limit itself by a final definition. I ask rather that the evidence be admitted to the greatest extent. In conclusion, I come to the question of how the presentation of evidence can be carried out in practice and how the legal hearing of the member can be made possible according to Article 9, Paragraph 2, of the Charter.

The principles valid in criminal procedure in all countries allow every defendant before the Court certain rights. The most important principles are the principle of direct, oral proceedings and the right to defence and to a legal hearing. Since, according to my statements, the real defendants are the members of the organizations, these rights must be accorded to every member of the organization. In spite of this basic point of view, which will be discussed in still greater detail in our final pleadings, and with all legal reservations, the defence does not overlook the fact that for all practical purposes this is impossible within the framework of this trial. A solution must be found, since the prosecution has lodged the indictment of the organizations on the basis of the Charter in its present form.

This leads to the necessity of carrying out the proceedings, in such a way that the aim of all people taking part in the trial can be only to find the best possible solution, by getting as close as possible to the generally accepted, and in our opinion, inviolable, points of view.

In this connection the defence in the same way as the prosecution, is fully aware of its duty to work constructively towards a decision by the Tribunal.

If the fact that the enormous number of people who are affected by the Indictment gives rise to tremendous difficulties, which prevent a reasonable solution of this problem, an adequate basis for judgement of the aims of the organizations, as well as the actions and the subjective attitude of the individual member of the organization must nevertheless be found.

In order to make any headway in these proceedings at attempt must be made to attain a result in respect to the collective membership by classifying certain types. We do not fail to recognise the great difficulties which confront the passing of a just sentence when a typical aspect is taken as a basis for judgement. Every attempt to attain, on the basis of a large number of individual witnesses to be brought before the Court, a clear picture of that which is typical would be unavailing. The only way, in our opinion, is to separate the presentation of individual evidence, in respect to time and place, from this Tribunal.

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