Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-214.10 Last-Modified: 2001/02/26 [SIR DAVID MAXWELL FYFE, Continued] Let me conclude by reminding you of the opinion of the Supreme Court - the supreme guardian of National Socialist honour and discipline, to whose august authority and jurisdiction the members of all these organizations were subject. Of the murders committed during the 1938 demonstrations by Hoheitstrager and members of the SA and SS, the investigation of which had been entrusted to the Secret State Police and the Party Jurisdiction, of Gauleiter and other Political Leaders, it was pleaded that "in such cases as when Jews were killed without an order or contrary to orders, ignoble motives could not be determined." The purpose of those proceedings in the Party Court was "to protect those Party comrades who, impelled by decent National Socialist attitude and initiative, had overshot their mark." In those few lines you have the secret of all the death and suffering, the horror and tragedy, that these defendants and the members of these organizations have brought upon the world. You see to what depths of evil they corrupted the human conscience. No ignoble motive! The murder of women and children - the "decent National Socialist attitude and initiative!" Such was the National Socialist creed which the members of these organizations fanatically accepted, the creed which - can one doubt? - they still cherish and, given the opportunity to do so, would revive. HIGH COMMAND AND GENERAL STAFF It is not my intention to trespass on the ground which will be covered so well by my colleagues. Nevertheless I want to state, as clearly and emphatically as it may be stated, that the British Delegation unreservedly joins them in the request for the condemnation of the group indicted as the General Staff and High Command. [Page 290] The men involved have joined in wars which they knew were unjust wars of aggression. They have borne essential parts in the deeds which in the hands of their immediate perpetrators are undeniably War Crimes and Crimes Against Humanity. Yet they protest their innocence. Our case against them has as clear a basis on the facts of this case as in the lessons of history. They carried out orders which, on the admission of many of them, bit deep into the remnants of their consciences. They knew that they were doing what was wrong, but they now say "Befehl ist Befehl" - an order is an order. All decent men find it difficult to blame others for absence of moral courage - they are only too conscious of their own failings in that direction. But there comes a point when, faced with crimes which are obvious murder or barbarity, there is a higher duty. Even Dr. Laternser admitted this was so. His suggestion to the witness Schreiber that he ought to have protested at the Army staff's proposals for bacteriological warfare came strangely on behalf of these men whose very defence has been to declare the impossibility and uselessness of protest. What nonsense - what utter nonsense - is this which you have been asked to listen to by these defendants and their generals, when their own counsel, to discredit a witness, must ask the very question which the prosecution has itself been asking since the day this trial began. In fairness to all military tradition it should not go forth that soldiers have sheltered behind the letter of a command from facing moral problems - and deciding them, rightly or wrongly, as moral problems. Great captains are not automata to be weighed against a rubber stamp. I need not traverse the history of our own military figures - the philosophy of Montrose, the brooding thoughts of Marshal Ney, the troubled heart of Robert E. Lee in 1861, to find examples. Two of the greatest names in German military history spring to one's mind: von Clausewitz leaving the Prussian Army to serve in that of Russia; Yorck von Wartemburg making his decision of neutrality - both put what they deemed the needs of Europe and humanity above the orders of the moment. How much more clear and obvious was the duty when the work of drafting, issuing and carrying out the "Nacht and Nebel" Decree, the Commando Order, the Commissar Order, Hitler's order to murder the 50 Air Force officers, meant the defiling of every idea which every soldier cherishes and holds dear; when - as all of them who ever served upon the Eastern Front could see with their own eyes - they were asked to support and co-operate in a calculated system of mass extermination and utter brutality. These men, of all men, knew their leader to be a callous murderer, yet for years they had met in conference after conference to sit at his feet and listen to his words. They fed his lust for power and enslavement with the best of their professional skill. While the defenseless peoples of the East, the men, women and children of Poland, of the Soviet Union and of the Baltic States were being deliberately slaughtered and deported into slavery to allow for German Lebensraum, these men talked of the necessities of war. When their own cities were bombed. and Germans killed, they called it murder. Only in July, 1944, when Hitler's star was dimmed, did three field-marshals and five colonel-generals recognize that he was murdering also their own country, and take action. When that star was rising in victory they had hailed it, and ignored the blood-red colour of the clouds from which it rose. So much for the facts and the merits. It is perhaps permissible to say one word on the construction of the Charter. The use of the two words "group" or "organization" surely connotes that the entity in question may have been either formally organized by the Nazis or selected by the prosecution as a group which existed in living reality. This group was united by its special knowledge given at so many conferences, and voluntarily bound by the transmission of those criminal orders. For that reason we ask that it should be condemned. [Page 291] REICHSREGIERUNG With regard to the Reichsregierung also I only desire to make clear that the British prosecution is again asking unhesitatingly for a conviction. Beyond this I wish to make two points only. Some question has been raised as to the position of those known Nazis who joined the Cabinet in 1933. If anyone in that Cabinet did not know to what he was committing himself on 30th January, 1933, he had a very good idea in March when the Jews were attacked. His knowledge increased in April when the whole nation was organized in boycotting the Jews, and the official figures of 20,000 people under arrest were given in the German Press. In June, 1934, he knew that murder was being used as an instrument of policy. In 1935 and 1936 he knew that the foreign policy was being carried on at the calculated risk of war. The other point on which I want to comment is the picture given by the defence of ministers in complete ignorance of what was going on. In my submission, government does not function like that. Whether totalitarian or democratic, a government can only act by dealing with human beings. The lives of human beings are not lived in watertight compartments; their infinitely varying interests are inextricably interlocked. The most completely authoritarian minister must consider the repercussions of his actions on the acts of his colleagues. In other words, he must know what is going on. It is because the men of this group knew what was going on, supported it and took the principal positions and richest rewards of the State for themselves as the price of such support, that we ask for the conviction of the organization today. I have endeavoured to show how the SD and the Gestapo fit into the scheme of the Nazi State. As one would expect, the evidence that I have mentioned introduces them in innumerable ways. Beyond once more emphasizing my support of my colleagues' plea for their conviction I do not intend to comment further upon those organizations. CONCLUSION I am deeply conscious that one of the greatest difficulties, and not the least of the dangers, of this Trial is that those of us who have been engaged day in and day out for nine months have reached the saturation point of horror. Shakespeare attempted to picture that saturation point in the memorable lines: "Blood and destruction shall be so in use And dreadful objects so familiar That mothers shall but smile when they behold Their infants quartered with the hands of war; All pity chok'd with custom of fell deeds." It is only when we stand a little apart from what has been our daily companion for forty weeks that we realize that the "domestic fury and fierce civil strife," the results of which Marc Antony was prophesying, are an inconsiderable bagatelle beside the facts which we have had to consider. It is not merely the quantity of horrors - although these organizations have been the instruments of death for 22,000,000 people - it is the quality of cruelty which produced the gas chambers of Auschwitz or the routine shooting of Jewish children throughout a continent claiming to be civilized. There is not one of these organizations which is not directly connected with the sorry trade in murder in a brutal form. Who can doubt that the Reich Cabinet knew of the euthanasia used to conserve the physical resources of Germany for war? It is beyond question that the High Command and General Staff passed on these orders of which you have heard so much and which are all reduced in the end to plain murder; the Leadership Corps shared in killing Jews and ruining the bodies of slave labourers. I have simply to mention the SS and the crimes come unbidden into the mind without any words of mine. Conniving, assisting and finding a [Page 292] reason for these crimes were the SD and the Gestapo. The SA trained its Baltic recruits to reach the SA standard which came to fruition in the ghetto of Kaunas or the pit at Vilna. The late President Woodrow Wilson once said: "It is indispensable that the Governments associated against Germany should know beyond a peradventure with whom they are dealing." If Europe is to be cleansed of Nazi evil it is indispensable that you and the world should know these organizations for what they are. It has been our sombre task to assist you to this knowledge: having done so, we sometimes wonder if the stench of death will ever wholly pass from our nostrils. But we are determined to do our utmost to see that it will pass from Germany, and that the spirit which produced it will be exorcized. It may be presumptuous for lawyers, who do not claim to be more than the cement of society, to speculate or even dream of what we wish to see in its place. But I give you the faith of a lawyer. Some things are surely universal: tolerance, decency, kindliness. It is because we believe that there must be a clearance before such qualities will flourish in peace that we ask you to condemn this organization of evil. When such qualities have been given the chance to flourish in the ground that you have cleared, a great step will have been taken. It will be a step towards the universal recognition that - "sights and sounds all happy as her day, And laughter learnt of friends, and gentleness And hearts at peace" are not the prerogative of any one country. They are the inalienable heritage mankind. THE PRESIDENT: The Tribunal will adjourn. (A recess was taken.) MR. DODD: Since the 20th day of November, 1945, this International Military Tribunal has been in almost continual session. In these many months, a record of more than I5,000 pages has been compiled. Over 300,000 affidavits have been submitted, about 3,000 documents have been offered and oral testimony has been heard from some 200 witnesses. This great mass of evidence, oral and written, almost exclusively of German origin, has established beyond question the commission of the crimes of criminal conspiracy, aggressive war, mass murder, slave labour, racial and religious persecutions and brutal maltreatment of millions of innocent people. The four prosecuting Powers have indicted and held responsible for these frightful crimes, as individuals, the twenty-two defendants named in the Indictment. But the four prosecuting Powers, recognizing that the twenty- two individual defendants could not by themselves accomplish the execution of these innumerable crimes, have also named in the Indictment the Nazi organizations, as the principle media by and through which these crimes were effected. These organizations - some Nazi-created, some Nazi-perverted - were the agencies upon which the defendants relied, and through which they operated, for the accomplishment of their criminal purposes over the complacent people of Germany and over conquered peoples of Europe. The named organizations fall into two classes. In the first class are those which are peculiarly Nazi creations, having no counterpart outside the Nazi regime, and which had no intrinsically legitimate purpose. This group includes the Politische Leiter, the SA and the SS. In the second class are those which existed in one form or another before the Nazi regime, but which were corrupted by the Nazis. This group includes the Reich Cabinet, the High Command and General Staff, and the Gestapo. As to this second class, it is not our contention that the institutions themselves were basically criminal, but rather that they became [Page 293] criminal under Nazi domination, although, by its very nature as a secret political police system, the Gestapo was the most easily adapted to criminal purposes and became one of the most effective of all instruments of Nazi criminality. It would be a mistake to consider these organizations named in the Indictment as isolated, independently functioning aggregations of persons, each pursuing separate tasks and objectives. They were all a part of, and essential to, the Police State planned by Hitler and fashioned by his clique into the most absolute tyranny of modern times. That Police State was the political Frankenstein of our era, which brought terror and fear to Germany and spread horror and death throughout the world. The Leadership Corps of the Nazi Party was its body, the Reich Cabinet its head, its powerful arms were the Gestapo and the SA, and when it strode over Europe its legs were the armed forces and the SS. It was Hitler and his cohorts who created this Police State- monster, and it brought Germany to shame and the nations of Europe to ruin. It would, likewise, be erroneous to view the structure of this police system as something casual, or its growth and development as normal political phenomena. For it was planned from the earliest days by the conspirators. The Nazi "old fighters" had a design for despotism. They built the SA at the outset as a private band of strong-arm men to wield the club against the political opponent and the whip against the Jew. They established the SS as the dread guard of the Fuehrer and of themselves. When they seized power they abolished police protection and substituted police persecution as the mission of the Gestapo. They wiped out all semblance of free government and set themselves up in the Reich Cabinet with plenary powers. They depraved the highest traditions of military ethics and substituted "willing tools" for ranking men-at-arms. They obliterated all other political parties and fastened on the German people a political strait-jacket in the form of the Leadership Corps. Deprive the Nazi conspirators of these organizations and they could never have accomplished their criminal aims. Take away the SA and they would have lost the mastery of the streets; take away the SS and they would have had no concentration camp system; take away the Gestapo and they would have had no means of illegal arrest and unlimited detention; take away the Reich Cabinet and they would have had no subservient law-making body; take away the truckling military men and they would not have secretly planned their attacks or ultimately waged their wars. The provisions of the Charter empowering the Tribunal to declare a group or organization criminal, and the functions of the Tribunal under those provisions have been dealt with in the legal arguments and memoranda previously submitted to the Tribunal by the Chief Prosecutors. At that time, in response to the request of the Tribunal, Mr. Justice Jackson stated the grounds which, in our view, warrant declaring a group or organization criminal. Before now undertaking to summarize the evidence, it may be well to restate those tests: 1. It must be a "group" or "organization" within the meaning of Article 9 of the Charter - i.e., it must be an aggregation of persons, associated in some identifiable relationship, having a collective general purpose or pursuing a common plan of action. 2. Membership in the organization must have been basically voluntary, i.e., the membership of the organization as a whole, irrespective of particular cases of compulsion against individuals or groups of individuals within the organization, must not have been due to legal compulsion. 3. It must have participated directly and effectively in the accomplishment of the criminal aims of the conspiracy, and it must have committed Crimes Against Peace, or War Crimes, or Crimes Against Humanity, as charged in the Indictment. [Page 294] 4. The criminal aims or methods of the organization must have been of such character that its membership in general may properly be charged with knowledge of them. 5. Under the Charter the prosecution must also establish that at least one of the defendants in the dock who is a member of the organization is guilty of some act on the basis of which the organization may also be declared criminal. These are the tests of criminality which the American prosecution has conceded must be met with respect to each organization before a declaration of criminality as to that organization is warranted. My distinguished colleague, Sir David Maxwell Fyfe, has discussed in his address the evidence against most of the organizations, and the Russian and French Prosecutors will review specific crimes committed by these groups. I shall not discuss the High Command, since it is to be the subject of a special argument by a member of the American staff. I shall, with the consent of the Tribunal, address my remarks to the general proposition of whether the prosecution has sustained the burden of proving by competent evidence that each of the named organizations is criminal under all of the principles stated.
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