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

The Trial of German Major War Criminals

Two Hundred and Twelfth Day: Tuesday, 27th August, 1946
(Part 6 of 11)

[Page 160]


There are no other terms possessing the same value, on the contrary: the very fact that one must search and search again even then to find a term and that even then one still finds only an expression to cover 129 individual persons, but that from it no organized combination can be shown, forces us to conclude that a legal or factual set-up, call it what one will, never existed.

Although these wrong designations and the impossibility of finding a correct term constitute in themselves strong arguments against the assumption of a "Group or Organization," it is still necessary to deal with the legal conditions which muse be fulfilled in order to be able to consider the indicted 129 officers at all as a "group" or "organization," although it might be nameless.

As the Charter does not define the terms "group" and "organization," it is necessary for me to say a word or two on the definition of these terms:

In the first place, there is the question as to whether the term "group" is something different from the term "organization," or whether these terms are identical. As the Charter uses both terms side by side, even in the same sentence, it must be assumed that these two designations were deliberately chosen in order to emphasize at least a difference in fact.

Article 9 of the Charter gives rise to justified doubts as to whether it was actually intended to characterize two different phenomena, because under this Article the Tribunal is only authorized to declare the groups and organizations to be "criminal organizations." Therefore, the Tribunal cannot declare a "group" to be a "criminal organization" if it does not possess the corresponding characteristics, that is to say, if it is not itself also an organization. In this case, the quality of group would be legally irrelevant as far as Article 9 is concerned; an unorganized group could not be declared to be criminal.

Nevertheless, the question of the "formation of a group" must be re-examined.

As regards the definition, it must be based, according to the American Chief Prosecutor, on the natural usage of the language. That means:

The main characteristic of the existence of a "group" of people is the local co-existence of a multiplicity of persons. One speaks of a "group picture" if several persons are shown side by side, of a group of "curious on-lookers" if a number of people are watching side by side the same event. From this it follows that the condition which must be fulfilled to constitute a "group" is also the simultaneous co-existence of persons. As these two characteristics are lacking in the case of the group of high ranking generals and admirals, as defined by the prosecution - these officers who belong to the most different agencies were never, neither before nor during the war, locally collected nor simultaneously and jointly active - there can be no question of a "group" either in the linguistic or in the factual meaning of the word.

If this circle of officers cannot be considered as a "group" because the necessary conditions for the formation of a "group" are lacking, the question remains as to whether it was a "group similar to an organization" or even an "organization." If we take the natural usage of the language again as our starting-point, we find that the main characteristic of an organization is the fact of "its being organized." But a combination of people is only "organized" if it possesses organs of its own,

[Page 161]

acting on behalf of the organization, while its creation, its powers and its activities are based on some sort of a constitution. Furthermore, this association - irrespective of whether it be founded in law or may only have an existence based on sociological fact - must be able to develop through its own organs a will of its own. An organized association must be, as the Prosecutor himself admits, an "entity."

It is true that this "entity" need not find expression in so concrete a form that it appears as a special subject in law, but it must at least outwardly show the characteristics just mentioned, and must constitute as to its substance a deliberately created voluntary association of several persons for the pursuit of common purposes.

The main characteristic of an "organization" according to this definition is the "inner purpose" of the association. The external form is not alone decisive for its existence; on the contrary, an associated multiplicity of persons does not become an "organization," unless its inner purpose is that of the pursuit of common aims.

As regards the circle of officers concerned, the conditions are completely lacking both in law and in fact which might justify the assumption that they constitute a group similar to an organization, or an organization. Even the most important condition, namely that of voluntary membership, is not fulfilled.

These officers did not occupy their positions voluntarily, nor did they remain in these positions voluntarily. But that the condition of voluntary membership must be fulfilled has already been indicated by the Tribunal in its definition of the points of proof considered relevant, and also the prosecution has called these conditions essential. It is true that the military leaders voluntarily selected the military profession. They did join the Reichswehr voluntarily in 1920, and in so doing had to commit themselves for 25 years under a contract. However, they were promoted to the posts which come under the Indictment exclusively by reason of their ability, and without any initiative of their own. By virtue of the commitment entered into, they could not ask to be retired as long as they were capable of carrying out their duties, certainly not during the war, when resignation was explicitly prohibited to them.

These events and facts require no proof, as they are the same or similar in all the armies in the world. They are based upon the military power to give orders on the one hand, and the military obligation to obey on the other.

Thus it is proved that the "General Staff and High Command" do not in any way constitute an association of persons based upon voluntary membership.

But it also cannot be assumed that we are here concerned with an "organization" because the further condition, namely, the consciousness of these officers that they had joined an association at the moment of their appointment, was lacking.

Any citizen who voluntarily joins an organization knows, at least, that this organization exists, and that he is joining it.

But these officers were assigned without being questioned to the posts which are only now to be grouped together by the prosecution by the arbitrary process of representing them as a "group" or "organization." How could they, in these circumstances, have been aware at the time of their appointment to the various service positions that this appointment was equivalent to acquiring membership in a kind of association?

The argument of the prosecution that at an earlier date a similar association of General Staff officers existed in what was called the "Schlieffen Society" is irrelevant in connection with the appreciation of the legal aspect with which we are here concerned. The "Schlieffen Society," which only met once a year for a lecture and a report, was exclusively concerned with cultivating the spirit of comradeship between the former General Staff officers and those on active service.

There was not the slightest reason for the German and Austrian officers on active service, who originated from the three service branches, to set up a similar association during the war.

The foundation of a political community was even more out of the question in view of the traditionally unpolitical attitude of the whole German officer corps.

[Page 162]

The idea that a criminal purpose might have caused an association, as the prosecution would like us to believe, is. quite absurd.

If, therefore, these officers neither took up their posts voluntarily nor had the consciousness of joining an association, or of getting together in an organization, the sole fact that they occupied the posts covered by the Indictment cannot, in itself, prove that we are concerned with an "organization."

There are also the following facts which are opposed to a deliberate association and the existence of an organization.

A large number of the officers concerned had never met personally at all. Only some of these officers have ever had contact with each other in connection with their official duties.

Every inner homogeneity was lacking in this circle of high- ranking officers who are alleged to be so unanimous in their opinions. This trial has more than anything else before brought out very clearly the divergencies of opinion and inner oppositions existing among these high-ranking military leaders.

THE PRESIDENT: We will break off there for a recess.

(A recess was taken until 1400 hours.)

DR. LATERNSER: The absurdity of this "group experiment," however, is best illustrated by the inclusion of Himmler in the circle of these Army officers. It is a well-known fact that Himmler was the deadly enemy of the Army, and that the leaders of the armed forces and those of the Waffen SS had no associations with each other except those occasioned by purely military operations at the front line. It is precisely the inclusion of Himmler and of some of the leaders of the Waffen SS which constitutes a convincing proof against the existence of this really impossible institution.

Nor does the time element permit the assumption that we are concerned with an "organization." The military leaders were not at their service posts simultaneously, but in office at such widely separated periods that only a fraction of them could have been members at the same time. This is shown most clearly by the charts submitted to the Tribunal. According to these charts there were only seven generals in 1938, only twenty-two generals on 7th September, 1939, only thirty-one generals on 22nd June, 1941, and only fifty-two generals in November, 1944, that is to say, far less than even half of the indicted officers were in the positions covered by the Indictment.

There existed no uniform will on the part of all these 129 officers. Every one of them, it is true, was subjected to one single will above his own, but only in a military respect, and not an [sic] regards as existing organized association. How could these officers, at any time, have been able to appoint organs of their own for expression of their will? The constant change in the positions of those concerned would have excluded any such possibility. Only nine generals and admirals occupied positions for the entire duration of the war which would enable them to be included among the so-called "group." On 4th February, 1938, only six generals held such positions. Twenty-one generals held positions coming under the so-called "group" for periods of only two to two and a half years. Sixty-one officers are counted as belonging to the "group," although they did not hold positions for even a year.

Just as the functionaries of a "group" were lacking, so a constitution or a statute governing the arrival and withdrawal of members, the authority and the activity of its functionaries, their election or appointment was lacking. There existed not a single written or oral provision dealing with any kind of a community. The prosecution was, therefore, unable to submit one single document proving the existence of a "group" or an "organization."

The affidavits submitted to the Tribunal by the prosecution, which were to prove on the strength of the statements made by Generals von Brauchitsch, Halder

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and Blaskowitz that a "group" did exist, have proved to be quite unsuitable for this purpose as a result of the corrections which were subsequently made. The hearings of Field-Marshal von Brauchitsch before this Tribunal, and of General Halder before the Commission, have shown that the identical affidavits of both generals constituted a condensed version of several interviews, drawn up by the interrogating officer and submitted to them for signature, and that those written statements were unintelligible in all the points which are of decisive importance in this question, without the additional explanations given by the witnesses before they signed these statements. Consequently, the interpretation given to those statements by the prosecution is wrong. The corrections which have now been made have not been refuted and have thus deprived the prosecution of its main argument and of every proof in favour of the existence of a "group."

The same applies to the affidavit of General Blaskowitz, which was submitted to the Tribunal in the course of these proceedings. They have also been rectified and completed by Affidavit 55. Thus, the conclusions drawn by the prosecution have also in this case proved to be wrong. Nor has a joint action, which could be regarded as the expression of the collective will of the organization, been proved in any of the cases under consideration. It is quite impossible to give such proof, since this circle of officers had neither by law nor by nature the capacity to negotiate, and could, therefore, not have exercised any joint action as an organization.

Nor did these officers hold any meeting from which the existence of any kind of an organization might be inferred. The prosecution is quite wrong if it believes that as a proof of its theory it can cite military discussions with Hitler, and different meetings of field commanders.

When from time to time meetings of the Supreme Commander of the Army were held with the Commanders-in-Chief of the army groups, or armies, this was always done for purely military purposes, and the discussions were exclusively concerned with military questions. The assignment of the Commanders-in- Chief to widely dispersed theatres of operations and their permanent and complete absorption by their military duties made it impossible from the very outset for them to meet for reasons other than purely military ones. For the same reason, not even the highest military commanders maintained close contact with each other, particularly since the frequently mentioned Fuehrer Order No. 1 limited the knowledge of each one of these Commanders-in-Chief to his own sphere, whatever his position might be. As the three service branches, apart from their operational co-operation in individual cases, existed side by side in complete independence, joint discussions of the commanders from the various service branches were, for this reason, held only on very rare occasions.

If the prosecution have referred to an affidavit by General Blaskowitz in order to prove the contrary, the latter's supplementary affidavit, No. 55, has shown that he was misunderstood also on this point.

There have never been frequent meetings of the high-ranking generals in the sense implied by the prosecution. The prosecution has wrongly interpreted events and acts resulting from the purely military execution of certain tasks.

The well-known meetings with Hitler can be used even less as a proof of the existence of an institution similar to an organization, as they were held - and this was repeatedly explained in the course of these proceedings - merely in order to mow the participants to listen to a speech by Hitler, and to receive his orders subsequently. Regarded from the point of view of the commanders, these meetings had a purely military character.

I may, therefore, sum up as follows

1. The 12 officers concerned merely represent a multiplicity of persons, who neither in law nor de facto possessed the capacity to negotiate, and therefore cannot be the object of a special legal or even penal judgment.

2. The designation "General Staff" and "High Command" are misleading and wrong.

[Page 164]

3. The circle of officers concerned was neither a "group" nor an "organization" nor an institution of organizational character.

4. Membership, which is clearly defined in any organization, must in this case be the subject of long-drawn-out discussions.

5. None of the officers took up his post voluntarily nor was conscious that he joined an organization, or of having been a member of it. Most of the so-called "members" did not even know each other personally, and their attitude to the regime was widely divergent.

6. There has never been an acting "organ of association" (Verbandsorgan), never a "constitution" or a "charter." There has never been a "will of the association" in evidence, nor has any "action of association" (Verbandshandlung) been recognizable.

7. The officers concerned, whose names and number we know exactly, can therefore be held responsible only as individuals, and only for crimes which they have personally committed. They were never grouped together collectively, and therefore they cannot now be grouped together collectively, merely in order to facilitate their punishment.

Once in ancient times - after the battle of Aigospotamoi - generals were to be condemned by a collective verdict for a kind of crime against humanity. They had failed to bury their dead.

Thereupon, Socrates rose in court, argued against this proposition in a passionate speech, and demanded that the Tribunal should safeguard the principle which was the absolutely indispensable condition of any just verdict, namely:

That every military leader could only be indicted as an individual, and sentenced only in accordance with the measure of his personal guilt.

Socrates won. The Tribunal maintained the principle in spite of the opposition of public opinion, and refused to render a collective verdict.

Should our modern period throw overboard so easily something which has been looked upon as a fundamental principle of law for the last 2,000 years?

I believe that a collective indictment and a collective condemnation are impossible. If only for the reasons which I have just presented, the Tribunal will have to reject the motion to declare the so-called "General Staff" and "High Command" group a criminal organization.

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