The Nizkor Project: Remembering the Holocaust (Shoah)

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If in England and America - as an exception - associations
as such can be punished, that can be done only on account of
certain groups of offences, and only to the effect that
either the dissolution of the association may be pronounced
or fines imposed. Naturally, in such proceedings, it is a
necessary condition for the prosecution and the defence,
that the association as such be represented during the
proceedings by its functionaries and representatives and be
able to defend itself; whereas in this trial the groups and
organizations as such are summoned before the Tribunal,
although they do not exist any longer and although their
functionaries are absent. It has never been the case in any
country that groups and organizations are declared guilty or
criminal, and that, on the basis of this declaration of the
Court, all members of the groups or organizations can be or
must be indicted and punished because of their mere
membership. This is the completely novel and odd feature
which stands in contrast to the existing law of any country.

                                                   [Page 92]

I believe it is permissible to say that neither England nor
America would ever be willing to pass such a law for their
own population. If all this proves that the declaration of
criminality demanded must automatically result in grave and
completely untenable consequences, then the demand of the
prosecution should be denied in the name of justice. The
Charter, which in no way obliges the Tribunal to make such a
declaration, would also not be violated thereby, in this way
an injustice would be avoided, which could only injure the
integrity of the judgement of the Tribunal in the eyes of
our contemporaries and of posterity.

My arguments lead to the following conclusion:

The Tribunal should, because of the legal arguments
presented, as a matter of principle, refuse to declare any
group or organization criminal; it is within the Tribunal's
power to do so.

If this is not done, the concept of the criminal
organization must be so defined that the innocent members
are protected from serious consequences. This can be done
only by means of a definition, as suggested yesterday by my
colleague Kubuschok. Accordingly, those subjects of evidence
proposed by him should also be admitted if they are not a
priori irrelevant because of the fact that, for legal
reasons, the prosecution's demand of a verdict against the
groups and organizations cannot be granted. It is necessary
that the following additional evidence be admitted for the
group of the General Staff and the OKW, which I represent:

(1) The group included under the designation "General Staff
and OKW" is not such a group and is not an organization. My
explanation of this subject of proof is as follows:-

  (a) Mr. Justice Jackson is of the opinion that the
  concept of "group" is more comprehensive than that of
  "organization," that it does not have to be defined, but
  can be understood by common sense. To this I must object
  that those who occupied the highest and the higher
  command posts represent the heads of a military
  hierarchy, as it is to be found in every army in the
  world. There was no relationship whatsoever evident among
  the members of this group. Nor can such relations be
  assumed merely because of the official connections
  between the various offices or because of the channels
  which actually existed. Moreover, since the circle of
  people whom the prosecution wishes to include in this
  group is admittedly composed in a completely arbitrary
  way, simply on the basis of official positions occupied
  within a period of eight years, there is no evident tie
  which could justify the assumption of the existence of a
  group. To form a group it is absolutely necessary to have
  some connecting element in addition to the purely
  official contact between offices.
  (b)Apart from the Chiefs of the General Staff, the Army
  and the Air Force, none of the individual persons in the
  group belonged to the General Staff. The German General
  Staff of the Army and the Air Force - the Navy had no
  General Staff - was headed by the Chief of the General
  Staff and consisted of the General Staff officers who
  acted as operational assistants to the higher military
  For these reasons the designation or name given by the
  prosecution to this fictitious group under indictment, is
  false and misleading as well.

(2) The following subject of evidence, in addition to those
advanced by my colleague Kubuschok, should be admitted for,
the group of the General Staff and OKW: The holders of the
offices forming the group did not join a group voluntarily
nor did they remain in it voluntarily.

The admission of this subject of evidence is necessary for
the following reasons: Mr. Justice Jackson stated yesterday
that joining a group or the membership in it must be
voluntary. This condition is not present in the case of the
group which I represent. The vast majority of the indicted
higher military leaders had come from the Imperial Army and
Navy. All of them had served in the Reichswehr long before
1933. They did not join any group but were officers of the

                                                   [Page 93]

Forces and received their appointments, which they were not
at liberty to choose, only on the basis of their military
achievements. They also were not at liberty to relinquish
these appointments without violating their oath of military

(3) All evidence is to be admitted which refers to the
charge against the group of the General Staff and the OKW as
contained in the summary of arguments. Evidence on these
points could be presented in the following way:

  1. A number of people concerned should make sworn
  affidavits from the contents of which conclusions could
  be drawn regarding the typical attitude of a certain
  number of those involved.
  2. Some typical representatives of the group ought to
  testify before this Court about the subjects of evidence
  3. Every other sort of evidence having some probative
  value should be admitted to the extent necessary.

We request that this evidence should be admitted to a full
extent for the time being, without prejudice to a subsequent
decision on its weight, just as Mr. Justice Jackson
suggested the same thing on 14th December, 1945, with regard
to the evidence offered by the prosecution, for at present a
binding decision on the relevancy of the evidence offered
cannot be reached.

Whether this evidence is necessary at all and whether or not
and to what extent it is relevant, depends on the following:-

(a) Whether the Tribunal, following the arguments of justice
and fairness as submitted, and by authority of the power
given it, declines to declare these groups and organizations

(b) or, if this is not done, in what way it defines the
concept of criminal groups and organizations.

These two points cannot be definitely decided at present,
since there is still a great deal to be said about these
extremely difficult and significant and completely novel
problems, as well as about the impressive address delivered
by Mr. Justice Jackson. One of my colleagues has undertaken
to work out a comprehensive memorandum on all these problems
and questions, which will be ready in about two or three
weeks. I request that additional argument pertaining thereto
be reserved for me and my colleagues at that time.

One last point: the Tribunal ought also to reach a ruling as
to what is to be done about the last word for the

THE PRESIDENT: Mr. Justice Jackson, the Tribunal would be
glad to hear you in reply.

MR. JUSTICE JACKSON: I think there is not much that I care
to say in reply, but there are one or two points which I
would like to cover. It has been suggested that there be a
separation of the trial of the issues as to the
organizations from the trial now pending. I think that is
impossible under the Charter. I think the trial must proceed
as a unit. Of course, it is possible to take up at separate
times different parts of the trial, but the jurisdiction
conferred by Article 9 for the trial of organizations is
limited. It is at the trial of any individual member, of any
group, etc., that this decision must be reached and it must
be in connection with any act of which the individual may be
convicted. So I think that a separation in anything more
than mere days or weeks of our time is impossible.

I find some difficulty in understanding the argument which
has been advanced by several of the representatives of the
organizations, that there would be some great injustice in
dishonouring the members of these organizations or branding
the members of these organizations with the declaration of
criminality. I should have thought that if they were not
already dishonoured by the evidence that has been produced
here, dishonour would be difficult to achieve by mere words
of the declaration. It is not we who are dishonouring the
members of those organizations. It is the evidence in this
case, originating largely with these defendants,

                                                   [Page 94]
that may well bring dishonour to the members of these
organizations. But the very purpose of this organizational
investigation is to determine that part of German society
which did actively participate in the promulgation of these
offences, and that those elements may be condemned; and, of
course, if it carries some discredit with it, I think we
must say that the discredit was not originated by any of our
countries; the dishonour originated mainly with those in
this dock, together with those whom the fortunes of war have
removed from our reach.

There seems to be some misunderstanding as to just what we
mean, or, at least, we do not agree as to what is to be
meant by treating these organizations as generally
voluntary. The test which has been advanced by the counsel
for the organizations would, it seems to me, completely
nullify any practicable procedure. Now, let us contrast the
Wehrmacht and the SS, to get at what I mean by regarding an
organization as generally voluntary. The Wehrmacht was
generally a conscript organization, but it may have had a
good many volunteers in it. I do not think we would be
justified, because there were volunteers; in calling the
Wehrmacht a voluntary organization. The SS, on the other
hand, was generally a voluntary organization, but it did
have some conscripts, and I do not think it would be any
more just to carry the SS into the class of conscript
organizations, because of a few members, than it would to
classify the Wehrmacht as voluntary because of a few
members. In other words, in neither case would we be
justified in allowing, as we might say, the "tail to wag the
dog." It is a question of the general character of the
overall organization that decides what these organizations

Now, of course, if the Tribunal saw fit to say that its
declaration was not intended to apply to any groups,
sections, or individuals who were conscripts, that is one
thing. I have no quarrel with that. From the very beginning
I have insisted that, of course, we were not trying to reach
conscripts. But, if you sit here week after week determining
who is a conscript, and just where that leads, that I think
would be quite apart from what we ought to do here.

A great deal of argument is addressed to the fact that proof
is lacking, or that there should be stronger proof, that
these organizations' real criminality was known to the
members; and the inference seems to be that we cannot hold
members who did not know of this criminal programme on the
part of these organizations. I think this leads to a
question, perhaps, of the sufficiency of proof rather than
of principle, but it seems to me again that we have the
common-sense division. If someone organized a literary
society for the study of German literature and accumulated
some funds and had a home, a house, and some of the
defendants became its officers and secretly diverted its
funds to a criminal purpose, while all the time to the
public it was presenting only the appearance of being a
literary society, it might very well be that a member should
not be held guilty unless we proved actual knowledge. Or, if
a labour union, ostensibly for the purpose of improving the
welfare of its members, has its funds or properties or the
prestige of its name diverted by those who happened to gain
control of it, to criminal purposes, then you have a
situation where the members might not be chargeable with
knowledge. But when I speak of knowledge sufficient to
charge members, as I did, I do not mean the state of mind of
each individual member. That would be an absurd test in any
court of law. In the first place, it is never a satisfactory
thing to explore the state of mind of an individual and, in
the second place, it is impossible to explore the state of
mind of a million individuals. So we might as well drop this
from consideration, if that were to be the test.

But let us look at this overall programme. How did these few
men who were the heads of this Nazi regime, kill five
million Jews, as they boast they did? Now, they did not do
it with their hands, and it took disciplined, organized,
systematic manpower to do it. That manpower was not casually
assembled. It was organized, directed and used.

Can the killing of five million Jews in Europe be a secret?
Were not the concentration camps known in every one of our
countries? Was it not a byword in

                                                   [Page 95]

every land in the world-the German concentration camps-and
yet we have to hear that the German people themselves had no
knowledge about it!

Our public officials were protesting diplomatically against
the slaughter of Jews, and in every other way, and yet we
are told this was a secret in Germany. The name of the
Gestapo was known throughout the world, and there is not a
man among counsel who would not have turned white if,
someone rapped at his door at night time and said he was
representing the Gestapo. The name of that organization was
known-unless we are to assume that it was singularly secret
in Germany but known to the rest of the world.

That sort of thing bears on this question of what men ought
to know, who joined these organizations. There was no
declared and ostensible purpose of the SS, SA, and several
of these organizations, except to carry into effect the Nazi
programme. They meant to make themselves masters of the

The story is all in the evidence, and I will not go on to
repeat it. The programme was an open, notorious programme
and these were the strong-arm organizations. So it seems to
me that we get down to the situation where, as Chief Justice
Taft once said to the Supreme Court of the United States on
a somewhat similar question:

  "We as judges are not obliged to close our eyes to things
  that all other men can see."

And this was notorious and open.

It is a little hard, if your Honours please, for an American
patiently to listen to the arguments made here again and
again, that there is some plan here to punish with death
penalties, or extremely severe penalties, people who
innocently got caught in this web of organizations. If there
were the slightest purpose to go through Germany dealing
death, we would not have bothered to set up this Tribunal
and stand here openly before the world with our evidence. We
were not out of ammunition when the surrender took place,
and the physical power to execute anyone was present.

These powers have voluntarily, in their hour of victory,
submitted to the judgement of this Tribunal the question of
the criminality of these organizations. And it seems to me a
little trying to the patience of representatives of those
powers, to be told that behind this is some purpose to wreak
vengeance on innocent people. I think it is difficult for
those who have survived this Nazi regime to understand how
reluctant we are to kill any human being. It is a commentary
on the state of mind that survived this Nazi regime, rather
than upon us.

Control Council Act No. 10 - I do not know whether your
Honours have copies of that - Control Council Act No. 10
does make membership in the categories which may be
convicted, a crime, and I think it ought to. It ought to be
sufficient to bring before a Tribunal inquiring into the
detail of each individual, any individual as a member, and
that is all that we have here in a declaration which, in
substance, enables you to put the individual on trial.

It is true that the punishment may include a death penalty,
and so long as the death penalty is imposed by any society
for anything, the penalty of death ought to follow in some
of these cases; the SS men who were responsible for the
destruction of the Warsaw Ghetto, for example, or SS men who
are shown to have been responsible for the top planning,
even though they did not actually participate.

But I call your attention to the fact that in Provision No.
3 of Act No. 10 the slightest penalties are also provided.
The restitution of property wrongfully acquired is one of
the penalties that may be imposed. The deprivation of some
or all civil rights is another. During this period of
reconstruction of German society those minor penalties may
very well be imposed upon people who entered into these
organized plans. If not, you have the situation that the
people who organized themselves to force this Nazi programme
first on the German people and then on the world, are
treated exactly the same as the German who was the victim of

                                                   [Page 96]

Now, is it not our duty as occupying powers of a prostrate
country to draw some distinction between those who organized
to bring on this catastrophe, and those who were passive and
helpless in the face of overwhelming power?

Counsel for one of the defendants has already shown that, in
administering the affairs, an SA man has been made a
Councillor in one of the districts. There is no purpose,
because a man happened to get into the SA, to take his life
or to take his property or to condemn him to hard labour for
life. There is a purpose to have the basis for bringing
these people in for what the military people call a it
"screening" and to find out what kind of people they are and
what they have been up to.

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