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

The Trial of German Major War Criminals

Two Hundred and Thirteenth Day: Wednesday, 28th August, 1946
(Part 6 of 13)

[Page 209]

[DR. KUBUSCHOK, Continued]

If the thesis of the prosecution were correct, Hitler would have left the existing organization as it was and would not have completely reshuffled those holding key positions. His alleged loyal followers in the conspiracy, once the common plan had been conceived, would

[Page 210]

have been best suited to carry it out. Also when we consider the persons forming the Cabinet, it seems absurd to imagine so close and intimate a collaboration between its members and Hitler. Here were men from the most widely divergent camps. The ministers of the individual departments, of whom some had been taken over by Hitler and others newly assigned, were not all of them his Party followers. Most of them had had no close connection with him. It is impossible to explain psychologically how and when Hitler won over these people, not only to share his Party ideas for the achievement of the common aim, but also to commit the capital crimes of the Charter. Also we see a constant change in the composition of the Cabinet. People like Hugenberg, Papen, Schmidt, Eltz von Ruebenach and Schacht left the Cabinet. All of them had differences with Hitler, some of which were for far less weighty reasons than the crimes mentioned in the Charter. But according to the Indictment, all these people from the very start of their activities as ministers are alleged to have acquiesced blindly in the criminal plot.

Does it seem feasible - to mention only the case of Eltz von Ruebenach which has been brought up by the prosecution - that when receiving the golden insignia of the Party a man should express his religious scruples against Nazi ideas, if on the other hand he was already involved in such criminal aims and had worked for them for years? Is it not clear from his letter to Hitler that he had no doubts as to the integrity of the work of the Cabinet? How could a man like the Minister Popitz, who paid for his active opposition with his life, as one of the conspirators in the plot of 20th July, 1944, be connected with such aims and their attainment?

The circle of persons mentioned in the Indictment under the conception of "Reich Cabinet" is small. It is precisely this fact which shows how dangerous it is to attempt to define the character of a group of persons, and at the same time of an individual, by means of the declaration sought by the prosecution.

The Indictment is directed particularly against the Secret Cabinet Council and the Council of Ministers for the Defence of the Reich. I need say little about the Secret Cabinet Council. It never met and so never took any decisions or showed any activity. It was founded for personal reasons connected with the departure of the Foreign Minister von Neurath. In this Cabinet Council, which was merely called into being by a law, but which actually was never active, it would not have been possible to work out plans or do anything for their execution.

The Council of Ministers for the Defence of the Reich had been founded by a decree of Hitler at the start of the war. It is incomprehensible to me on what grounds the prosecution singles out the Council of Ministers in the Indictment as a separate institution within the framework of the Reich Cabinet. All its members belonged to the Cabinet and, except for Lammers, they are all present in the dock. It can therefore have no practical value for the declaration asked for with regard to the number of people accused, unless the prosecution itself has doubts as to the acceptance of its arguments concerning the Cabinet and wants to ensure the sentencing of at least this part of the Cabinet members, as a minimum of its motion.

My arguments for the Reich Cabinet are equally valid for the Council of Ministers. Moreover, the prosecution has omitted to make any statements in support of its assertion of participation in the crimes specified in the Charter.

It is clear to me that the scope of this trial makes it impossible to establish, even in the small circle of the Cabinet members, the intentions, acts and motives of individual members. The precept in Article 9 of the Charter is not an inflexible precept. It should make provision for the inclusion of a greater number of persons. The case of the Reich Cabinet embraces a numerically small circle. Seventeen of them are present in the dock. Apart from these only twenty are still alive. It is quite possible, by ordinary and legal means, to form a clear judgment of their former activities, both objectively and subjectively, by separate proceedings. This is also necessary in view of their former important place in public life. To put all of them now into one category and by the verdict

[Page 211]

to outlaw all of them, including those members who are dead, and to deprive them in subsequent proceedings of an argument which would affect an essential part of their defence - for this there are no reasons of any practical nature. In the case of the Reich Cabinet, considerations of expediency should not lead to the sacrifice of the universal principles of legality for the sake of practical requirements.

Finally, I feel obliged to express the following idea which generally touches the problem of the organizations: Mr. Justice Jackson said that considerations of expediency could also influence the verdict asked for by the prosecution. He believed that otherwise a great number of participants in the crimes would not be included. Some of the anonymous perpetrators would perhaps remain in the background. He believes that one can also see a political reason for the verdict asked for in the principle that the "good ones" should be separated from the "bad ones."

I have explained in my statements that a general condemnation of an organization would necessarily and ultimately include in the essential points a condemnation of possibly innocent persons. But is this sacrifice of the absolute principles of justice to considerations of political expediency really necessary, and can it be advocated? Anyhow, will it be possible to attain by this means what it is sought to establish for political reasons?

The greater the circle of persons included in a verdict, the less dishonour does it bring to those affected. If several million members are declared criminals, and if one considers that the dependants and friends of these outlaws are also affected by such a declaration, I believe that whatever it is intended to attain by the separation of "good ones" and "bad ones" will not be accomplished. If the circle is extended in this manner, the person who judges first visualizes those persons who, in his opinion, neither did nor willed any wrong. The desired result can be attained only if the circle of affected persons is limited to an extent which allows, even when judging critically, a just separation of really bad elements.

The possibility of outlawing morally, and to some extent also physically a part of the population from the body of the nation is numerically limited. I ask that this also be considered if one has in view the aim of a general appeasement.

I also do not believe that the verdict asked for is necessary in order to bring to punishment those wrong- doers who up till now have remained anonymous. Those who can be considered as wrong-doers have, for the greater part, been arrested. Their examination in the internment camps and in the denazification proceedings provides an easy way of determining the real culprits. Therefore, if the condemnation of all members of an organization is not necessary in order to attain the desired aim, the encroachment on the security offered by the law, which such a general condemnation necessarily entails, gives rise to serious misgivings.

One of the worst oppressions we in Germany suffered under the Nazi regime was the feeling of legal insecurity. We, who had to deal professionally with these matters, experienced daily what it meant for a legal-minded person to know that there was no legal system based on fundamentals and codes to give the individual that protection which alone makes him a free person. This feeling of insecurity, this feeling that on the grounds of some consideration of political expediency one could be seized at any hour by that system which violated this primitive human right, weighed upon every German. Now that the whole situation has changed they all want to think that these things have been abolished once and for all. After the experience of the past they consider that the principle of justice in particular must be without compromise. One desires to live with the conviction that only he can lose his freedom whose criminal activity is established beyond question in a legal trial provided with all possible legal guarantees. That is why countless people look, filled with expectation, to the first Tribunal which will help this principle to prevail, and be recognized by the world as an example - this principle which has been trampled under foot for years. All of us who were called to co-operate in these proceedings found this hope strengthened in all

[Page 212]

phases of the trial. The Tribunal now faces the decision whether a verdict according to the motion of the prosecution shall in effect include innocent people. Representatives of the prosecution have declared, of course, that by cautious use of the legal possibilities the number of persons to be subsequently prosecuted could be limited to include only such people as are really guilty. However, even if this intention could be carried out in full in all zones of occupation, the fact still remains, in spite of this desirable method, that the verdict in itself establishes the legal rule and provides the legal possibility for prosecuting on the mere fact of membership. Even if one does not agree with the legal aspect of the possibility I have developed, the legal question concerning material and procedure is of so problematic a nature that, for the individual innocent member, there is no absolute legal guarantee that he will not be prosecuted. The result would be that a situation would be created in which a great number of people would live in a state of latent uncertainty without knowing whether they would ever be prosecuted and sentenced on the basis of legal possibilities. This applies more especially to the minor cases which in any event would probably be sent back to the national tribunals in order of procedure.

The number of members and their relatives affected by the trial of the organizations is so vast that a situation would be created which would make it impossible for millions to achieve that high purpose which we have set: to win back the feeling of judicial and legal security.

THE PRESIDENT: The Tribunal will adjourn until two o'clock.

(A recess was taken until 14.00 hours.)

THE PRESIDENT: The Tribunal has just received an application dated the 18th of August, from Dr. Berges; that application is denied.

I now call upon Dr. Boehm.

DR. BOEHM (counsel for the SA): Mr. President, High Tribunal: It is in contradiction to the fundamental rights of every man to be made responsible only in accordance with the degree of his own guilt, if he is subjected, by the possible result of the collective indictment against the organizations, to Law No. 10 of the Allied Control Council. An atonement without guilt has been considered unjust since the beginning of human history. He who desires to punish, therefore, has to establish the guilt of each individual, if more than one have participated in a crime. If the planning of a crime is considered punishable as an act of preparation, then only those can be punished, in accordance with hitherto prevailing legal and moral principles, who participated in the plan - that means, who joined together in deliberate and conscious co- operation for just that purpose.

At no time have the legal principles which I have just explained, and which have evolved from fundamental human rights, been replaced in the criminal law of any nation by the legal concept of a "conspiracy." Guilt arises within the meaning of the legal conception of the conspiracy advanced by the Chief Prosecutor if:

(1) An association existed with a joint and common aim,

(2) These aims were criminal,

(3) The pursuance of these aims definitely involved the criminal deed, that is, the latter was foreseeable, and finally,

(4) The manner of carrying out the deed was in accordance with means either agreed upon at the time of joining, or else subsequently approved.

We must, therefore, examine the following:
(a) To what extent the collective elements of a conspiracy indicated here correspond to the legal concept advanced by the prosecution; and

(b) To what extent these collective elements were brought to realization by the members of the organizations.

[Page 213]

From this standpoint, the foregoing elements of a conspiracy as defined not only by German concepts of law, but also in accordance with well-known penal laws of other civilized countries, seem to agree completely with the definition established by the prosecution in the court session of the 28th February, 1946; so that, if we recognize the soundness of this argument, we have only to examine the aforementioned second question, namely, to what extent members of the SA became criminally involved in the commission of such acts as have now been defined in accordance with the elements of the crime in question.

This question touches upon a judgment of value and a question of fact. Primarily, it is a judgment of value, inasmuch as the concept "criminal," which is used in connection with the aims of the organizations, requires a clear definition.

For German subjects, actions committed within the German sphere of power can be criminal actions only if they are punishable by the German penal laws. According to hitherto recognized principles of International Law, one nation is not bound to consider criminal what other nations consider criminal, but only what this nation has adopted as "criminal" in its own moral and legal consciousness. At any rate, after conscientious investigation of this question we find that the German people without exception - that is also the mass of the members of the SA indicted in Nuremberg - has never differed in its basic moral and legal attitude from the fundamental laws of the rest of the civilized world. Millions of its members, too, consider a war of aggression a crime, as defined in Article VI of the Charter. Furthermore, no SA members, without exception, would ever argue the point that actions as defined in Article VI of the Charter as Crimes Against Humanity have always been contradictory to their principles; too, and must, therefore, from their standpoint warrant being judged criminal.

Accordingly, apart from the premises of the trial, which are contested, it only remains for the defence to investigate the question of fact as to whether the accused organization, the SA, at any time endeavoured to realize such criminal aims, or endeavoured to realize permissible aims by methods of a criminal character.

This has been alleged by the prosecution:

The aims of the accused organizations were clearly outlined by the Party programme and its statutes. The means for the realization of these aims found their visible limitation in the Reich laws and regulations published in the Reichsgesetzblatt. As an accused organization, the SA can be considered only as an association of persons whose common and general endeavour was exclusively directed towards realizing the aims pointed out to them, with means which were permissible under German law. Thus, the aims and the legally restricted means for the realization of these aims, which were openly known not only to the members of the accused organizations but to the entire world, cannot have been considered criminal by the world, which not only formally recognized the National Socialist Government, even after the union of Party and State was emphasized, despite their knowledge of the aims and legally restricted methods for which this National Socialist Government was responsible, but also gave repeated and visible expression to this recognition before the German people by concluding a whole series of international treaties ending with the Munich Agreement of 29th September, 1938, and the Russo- German Non-Aggression Pact and the Secret Amendment of 24th August, 1939.

The criminal character of the SA alleged by the prosecution, therefore, must be proved differently than by merely referring to a criminal character of the National Socialist idea in itself. If the idea itself is not already criminal, then the criminal character of an organization serving to carry out this idea can be derived, if at all, only from the criminal methods which, to use a phrase of the Tribunal, "were so completely evident, or had become so generally known to the members of the accused organization in some other way, that it can be generally assumed with justice that the members had been informed of these purposes and activities."

Thus the Tribunal itself has defined with unequivocal clarity the objective and

[Page 214]

subjective characteristic elements in the case which must be fulfilled if the International Military Tribunal is to characterize the SA as a criminal organization.

For the purpose of describing an organization or an individual, only typical characteristics may be used. Thus, it does not appear just to the defence if the prosecution attempts to deduce the criminal character of the accused organizations, for instance, by stating that the Party and their organizations effectively controlled the machinery of the State, quite apart from the fact that the SA never had any power to do this.

Even if we assume the use of such methods by the SA, they are not unique in the world, and do not belong to the past. But as long as these methods are not regarded and treated as criminal all over the world, they should not justly be used as typical manifestations of the criminal character of the indicted National Socialist organizations.

The allegations of the prosecution to this effect must, therefore, be dismissed with this statement on the establishment of proof of a criminal quality.

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