[Page 137]

This material I gathered from a letter which was put on my desk yesterday, a letter which I read yesterday evening for the first time.

These two points which I have just quoted as proof can be testified by Colonel Birkhoff of the General Staff who is at present interned in the camp at Dachau. I propose that we interrogate this witness and confront him with the witness Schreiber.

I assume that this officer is the same Colonel who presided over the secret session mentioned by the witness Schreiber. The witness is at Dachau. He could appear before this Tribunal tomorrow. My interrogation would take, at the most, twenty minutes. I consider the bringing of this proof absolutely essential in the interests of truth. I have submitted my application to the Tribunal in writing.

THE PRESIDENT: The Tribunal will consider your application. Perhaps the Tribunal ought to hear if the prosecution have anything to say in answer to the application made by Dr. Laternser. The Tribunal would also like to see the report and the letter to which Dr. Laternser referred.

SIR DAVID MAXWELL FYFE: If my Lord will just allow me a moment until I see Colonel Smirnov.

THE PRESIDENT: Certainly.

DR. LATERNSER: Mr. President, the letter is from General Warlimont, who is at present in Nuremberg. He wrote this letter on the 23rd of August, here in Nuremberg, and I received it yesterday. I found it on my table after I came down from the session. I put it in my brief case without reading it and noted its contents when I arrived home yesterday.

Perhaps I might call the attention of the High Tribunal to the fact that in this letter we are told that after the publication of these bacteriological projects over the radio this Colonel Birkhoff whom I have just asked for as a witness came to Warlimont who was still at Dachau at the time, and told him those facts which I have presented now.

Meanwhile, General Warlimont was transferred to Nuremberg a few days ago. These are the details connected with this point.

THE PRESIDENT: Whose report is it?

[Page 138]

These statements are put in parentheses, and I shall be very happy to submit this letter to the High Tribunal.

SIR DAVID MAXWELL FYFE: There are two points that occur to me.

First, if Dr. Laternser would let us see the letter, it might be possible to shorten the matter in that way, to make some admission as to the statement in the letter. Otherwise it might be convenient to see an affidavit from the officer and know what he was going to say, before we occupy the time by having him examined. If Dr. Laternser would agree to the prosecution having the letter translated and examined, we should be able to make a communication to him and, if necessary, to the Tribunal in the course of the day.

THE PRESIDENT: That seems a convenient course, and particularly in view of the fact that the Tribunal expect to finish the entire hearing of the case this week, certainly by Saturday evening, and it will be, therefore, very difficult to get an affidavit by this Colonel Birkhoff before that time. Therefore, if the prosecution are able to agree that Colonel Birkhoff would give that evidence, that probably would be the best way of dealing with the matter.

SIR DAVID MAXWELL FYFE: If your Lordship please, then if Dr. Laternser would allow us to have the letter, we will have it translated and looked into in the course of the day.

THE PRESIDENT: Yes.

DR. LATERNSER: Mr. President, if the witness can be called here through a request by telephone, then I can take his affidavit here or interrogate him briefly. That would be the quickest way. If I have to write to the camp first in order to get the affidavit that way, that would take more time. I assume that the telephone connection is such that we can still call Dachau today to have the witness brought here, and then we can discuss how this evidence will be presented.

THE PRESIDENT: We will see first what the prosecution say after they have seen the letter.

COLONEL POKROVSKY: My Lord, I would like to report that I tried to satisfy the possibility of confronting the witness of Dr. Laternser with Schreiber, but this possibility, unfortunately, has been excluded because Schreiber has been sent back into the prisoner-of-war camp. Thus it is impossible to confront the two witnesses because Dr. Laternser presented his request too late. The Soviet prosecution does not think that it would be advisable to call the witness requested by Dr. Laternser, especially since the witness requested by Dr. Laternser does not, as far as I know, refute the fact itself that there was a secret session of the OKW, which, in my opinion, is the most important fact in that case. That is all that I wanted to report to the Tribunal on the part of the Soviet prosecution.

THE PRESIDENT: The Tribunal will await the communication from the prosecution and they will consider the matter, Dr. Gawlik.

DR. GAWLIK: May it please the High Tribunal: Yesterday I paused at the question whether it would be possible at all to determine those prerequisites which are necessary in order to declare an organization criminal. I shall continue.

My statements made hitherto should lead to the conclusion that the evidence of guilt cannot be summarily determined by drawing conclusions from the number of crimes and the type of crime committed, from the knowledge of all the members of these deeds and from their consciousness of their illegality. It is, on the contrary, necessary that the proof of the knowledge and consciousness of illegality should only be considered in special proceedings in the case of each individual member of the organizations, for it depends on the circumstances; therefore the individual

[Page 139]

Now, I shall turn to the next section.

A condemnation of the organizations is furthermore in opposition with the principle of penal law - nulla poena sine lege. This principle has already been treated in detail by the defence counsel of the principal defendants. I shall not repeat these statements, but only point out briefly the following points of view:

In his speech of indictment on 20th November, 1945. the American Chief Prosecutor said that the defendants could not invoke this principle because they had themselves transgressed it. This argument in no way concerns the members of the organizations, because the members had no influence on the legislation, but were themselves objects of the legislation.

The Prosecutor of the Union of Soviet Socialist Republics pointed out in the discussion of this principle in his final speech on 29th July, 1946, that the Charter of the International Military Tribunal was an inviolable law and absolutely had to be carried out.

The Charter is, however, in no way violated and will also be carried out if the Tribunal considers the principle nulla poena sine lege and does not condemn the organization, for Article 9 of the Charter is merely an optional regulation. (Kann-Vorschrift). The Chief Prosecutor of the Union of Soviet Socialist Republics further asserted that the Charter represents principles which are contained in a succession of international agreements and in the legislation of all civilized peoples.

International agreements and laws of civilized peoples only show that punishable offences must be judged in individual proceedings.

The principle of collective judgment of groups of persons was up to now unknown in International Law. On the contrary, it is denied, as said before, by the science of International Law.

Until the First World War, it was the custom to include in peace treaties amnesty clauses for war crimes committed. After the First World War the general principle developed that individual members of fighting forces might personally be made responsible after the war for violations of the laws of war. I refer to Fenwick in International Law, 1924, Page 578.

The declaration of the Chiefs of State of the United States of America, Great Britain and the Union of Soviet Socialist Republics of 2nd November, 1943 mentioned by the Prosecutor of the Soviet Socialist Republics, orders expressly that individuals shall be made responsible. This declaration contains no statement to the effect that the collective condemnation of groups of persons is permissible.

Article 9 of the Charter is therefore not the expression of an internationally recognized legal maxim. This clause on the contrary creates a new law and cannot be made applicable with retroactive force, for instance, for the time since 1921, as proposed by the Chief Prosecutor of the United States or even for the time from 1933 on, as proposed by the Prosecutor of the Union of Soviet Socialist Republics in his final speech on 29th July, 1946.

The condemnation of the organizations is therefore in opposition to the principle nulla poena sine lege.

In the second section of Part 1, I come to the discussion of the questions of procedure resulting from Article 9 of the Charter. In legal procedure, according to that Article, an organization or group may be said to be criminal.

(a) In the trial of any individual member of any group or organization, and

(b) in connection with any act of which the individual may be convicted.

[Page 140]

This, however, cannot be the meaning and purpose of this definition, as I should like to illustrate by the Act of the United States of 28th June, 1940, already quoted.

When persons belonging to one of the associations mentioned in the Act of 28th June, 1940, are arraigned before a tribunal in several different proceedings, an admittedly extensive examination of evidence, but doubtful in its results, must be effected in each proceeding to determine whether the association to which the person belongs fulfils the primary conditions contained in the above legal stipulations. Then it could happen that in one trial it is established that the organization had pursued the purpose named in the Act of 28th June, 1940, while in other trials the result of the testimony is not considered as sufficient.

In order to avoid these difficulties, it could be decreed by a provision of the law that the trial be held against one or several members of the organization, while the other members who have not yet been accused are given the possibility of a legal hearing and if a member is condemned on account of his membership in an organization within the meaning of the Act of 28th June, 1940, the Tribunal makes the declaration, to take effect for all members of the organization, that the organization fulfils the purpose mentioned in the Act of 28th June, 1940.

Such provisions would achieve the following:

(1) the testimony on the aims, tasks and activities of the organization would be taken only once, and

(2) contradictory decisions on the objective tasks, aims and activities of the organization would be avoided.

THE PRESIDENT: Dr. Gawlik, are you arguing that if any individual were tried under this Act of June, 1940, the declaration of this Tribunal under Article 9 would have any effect in the Trial under that Act of June, 1940? Is that your argument?

DR. GAWLIK: No, your Lordship. I wanted to explain the stipulation laid down in Article 9 in line with the Act of June, 1940. The Act of June, 1940, is something quite different and has no connection with Article 9. I wanted to explain in connection with the Act of June, 1940, which was mentioned by the Chief American Prosecutor, what importance a stipulation would have such as is set down in Article 9.

THE PRESIDENT: What - what importance are you suggesting it would have?

DR. GAWLIK: Article 9, as I shall set forth, has the following significance:

One member must be accused because of his membership in an organization, an organization which according to Article 6 of this Charter pursues crimes. Then, in this Trial against one member, all the facts must be cited against this member because of his membership in the organization, and then the facts that have been ascertained, about the aims, tasks and activities of the organization, if a sentence is reached, can be used in the trials against the other members; only the objective facts, not the guilt, for guilt is an individual matter.

Your Lordship, may I cite an explanatory example. Here one member of the SD would have to be selected and this member would have to be accused, as I shall set forth, because the SD was part of an organization which permitted Crimes Against Peace, War Crimes, and Crimes Against Humanity. If this member is now punished because of his membership in an organization of that nature, you

[Page 141]

THE PRESIDENT: Well, I think I follow that argument based upon the first paragraph of Article 9, is that right? It is based upon your construction or interpretation of the first paragraph of Article 9?

DR. GAWLIK: Yes.

THE PRESIDENT: Are you saying that a decision of this Tribunal upon that would have any importance or effect upon a trial under the act of 1940?

DR. GAWLIK: No, that is only an example.

THE TRIBUNAL (Judge Biddle): The law of 1940 is a sedition law, is it not? That is the Sedition Law of 1940?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): You say the prosecution, as it did in its argument, depended on that act to show that this type of group condemnation was used in other countries, it made that analogy?

DR. GAWLIK: Yes, I know -

THE TRIBUNAL (Judge Biddle): Yes, you say that is not a true analogy.

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): And the reason you say that is that if one individual were tried under the Act of 1940 - do you follow?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): First it would be necessary to show that he belonged to an organization of which the purpose was to overthrow the Government by force or violence, right?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): Now, the Court then would have to decide first the purposes of the organization, right?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): Now, you say also that if a second individual were, at a later time, tried under that Act that the Government would again have to prove -

DR. GAWLIK: Yes.

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