The Nizkor Project: Remembering the Holocaust (Shoah)

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At any rate, however, in considering the element of
negligence one should also not overlook the fact that the
obligation to exercise attention differs in the case of ex
post facto laws from what it would be in the case of
existing laws.

In this connection I should like to refer to the fact that
the question of whether the statutes of the Party
organizations were illegal or not had often been examined
already, even earlier, at the time of the Weimar Republic.
Political considerations definitely favoured such a
declaration. Apparently, legal scruples at that time did not
deem the carrying out of such a procedure expedient. What
measures should we then apply to the individual member's
ability to judge such matters, if the legal problem is so
difficult and lends itself so very much to discussion?

The prosecution has restricted the motion so as to exclude
the auxiliary workers in the case of the Gestapo. The reason
for this can only have been that in the case of these
members, knowledge can not be assumed to be self-evident. I
ask that the conclusions drawn in this individual case be
applied to the members of other organizations. Should not
the individual member of an organization comprising
millions, who had far less contact with the executive body
than did an auxiliary worker of the Gestapo, should not this
member be judged much more favourably, as far as knowledge
is concerned, than this group which has been excepted ?

Are we not in particular obliged to use the best methods
possible, to inform ourselves as to the knowledge, or lack
of knowledge, of the individual member? Sir David, in
discussing the problem of negligence, suddenly spoke of an
ostrich policy. But here we have to consider that the person
who sticks his head into the sand in order not to see, has
actually seen something and therefore does not want to see
any more. It is quite different in the case of this member,
who, from the sources at his disposal, can gain no knowledge
of individual actions, who, in particular, has no knowledge
of whether possibly only ...

THE PRESIDENT: Forgive my interrupting you, but the Tribunal
has already heard and listened with attention to your
interesting argument, and the argument that they now are
prepared to listen to is only a very short argument in
rebuttal. As I have already pointed out, it seems to me that
the greater part of what you are now saying is what you have
already said. We can not go on hearing these arguments at
great length.

DR. KUBUSCHOK: Since I have arrived at the end of my
remarks, I should like in conclusion just to introduce one
point of view which concerns the defence of the Reich
Cabinet. The number of members of the Reich Cabinet is very
limited. One half is in the defendants' dock. Is it really
necessary to consider the other half cumulatively as an
organisation, since the small number of those concerned
makes possible an individual trial, with all the legal
guarantees given therein? To this extent I should like to
refer to the remarks made by my colleague, Dr. Laternser,
who mentioned the provision of the Charter that the Tribunal
is not compelled to reach a decision but that for reasons of
expediency it can refrain from doing so.

                                                  [Page 124]

THE PRESIDENT: Mr. Biddle wants to ask you some
questions.MR. BIDDLE: I have just one question. Will you
listen to this very carefully?

If the Tribunal find that an organization was being used for
a criminal purpose, and certainly with respect to some
organizations, there is ample evidence that might justify
such a finding, why, then, would the Tribunal not be
justified in holding that organization as a criminal
organization in so far as it was composed of persons who had
knowledge that it was being so used and voluntarily remained
members of the organization? In other words, the definition
would state that it consisted of members who had actual
knowledge that the organization was engaged in the
commission of crime.

DR. KUBUSCHOK: The organization cannot be separated from the
total number of its members. The declaration of criminality,
in connection with Article No. 10, is to affect each
individual member. The task of the Tribunal would not be
fulfilled if it limited that task and excluded from the
organization unspecified individuals. In the task which I
have mentioned we can not overlook the practical purpose,
and that will not be guaranteed if such a limitation is

MR. BIDDLE: I will ask just one more question. I do not
think you have answered my question. I will put it very
simply again.

How would that definition be unfair to any individual?

DR  KUBUSCHOK: If only a limited circle of persons in
connection with the organization is branded as criminal,
this necessarily results in an injustice to the other
members of the organization. The declaration, naturally,
affects the name of the entire organization, and, therefore,
the declaration of criminality affects each individual
member, even if one tries to limit the definition.

MR. BIDDLE: Thank you.

THE PRESIDENT: I think in view of the time we had better
adjourn for ten minutes.

(A recess was taken.)

DR. LATERNSER (counsel for the General Staff and the OKW):
Mr. President, it was not my intention to make a statement
today about the concept of the criminal organizations,
because I believe that my statements of yesterday on this
point were comprehensive. I should merely like to state
briefly my attitude to the second question put by Mr. Biddle
to my colleague Kubuschok.

The second question, if I understood it correctly, was as
follows: Why is it unfair to the individuals who were
members of an organization, or why can it be unfair to them
if this organization is declared criminal? This declaration
of the criminality of an organization is certainly unfair to
all those members who had no knowledge of any supposedly
criminal purposes and aims. For in this question one has to
. . .MR. BIDDLE: You misunderstood the question; the
question was a very simple one. I do not want to go into it
unless you want to. I will repeat it again. I said this: If
an organization was being used for criminal purposes -and I
added that there was very great evidence that such was the
case in certain instances - why would it not be proper to
hold it a criminal organization in so far as it was composed
of persons who had knowledge that it was being so used and
voluntarily remained members? Of course, that would exclude
from the organization everybody who did not have knowledge
that it was engaged in criminal purposes.

DR. LATERNSER: Then I did not understand the question quite
correctly and further statements in regard to these
questions, which have now been settled, are unnecessary.DR.
LOEFFLER (counsel for the SA): I should like first of all to
correct a misunderstanding. Sir David stated yesterday in
his reply that I had admitted that the SA had participated
in the acts of 10th and 11th of November, 1938. I[Page
125]emphasize expressly that I stated that only two per cent
of the SA at the most were involved in individual actions,
and that obviously applies to this event as well. This
example enables me to underline what my colleague Servatius
has previously stated, about taking into consideration the
so-called mistake of an organization in a case where an
organization deviates from its path and commits an error -
which should be avoided. The ninety-eight per cent who did
not participate as well as the two per cent who did
participate, with a few exceptions, all regarded this action
with aversion and disgust and were not inwardly in agreement
with it.

It is, therefore, an error on the part of the Indictment if
on the basis of this single event, on the basis of this
exceptional case, general conclusions are drawn as to the
general character of the organization. For it is rightfully
protested that the very rejection of this action is a proof
that this is an exception to the general tendency of the
organization.If then, it is asserted, as a second point,
that the SA was also concerned with concentration camps,
that is also a further typical proof of the false conclusion
to which one can come in the case of judgement against the
organization. Of four millions there were one thousand men
at the most; that is only a half per cent. The remaining
three million, nine hundred and ninety-nine thousand had no
knowledge of this and this can be proved. No one will wish
to claim that the fact that a half per cent were involved in
something - about which the others knew nothing at all -
allows a conclusion to be drawn as to the question of
criminal character. But this small percentage as such is not
an answer to the question, which is being raised at this
point. Rather we are, as before, of the opinion that the
explanation which was made by Attorney Kubuschok absolutely
covers the criminal character as formulated by the defence -
if the basic conditions are met, as set down by Attorney
Kubuschok in agreement with all defence counsel for the
organizations. On the basis of this formulation that
question which Justice Biddle previously put to counsel for
the various organizations can readily be answered. I should
like to emphasize that yesterday Mr. Justice Jackson made
the suggestion that instead of hearing countless witnesses,
experts be heard on the subject of what wilful intention can
be assumed in the case of the single organizations. I should
like to oppose this emphatically. One can not hear any
expert witness who can tell the court what, so to speak,
that "common sense" was, or, on the basis of which the
question is to be judged - what knowledge the single members
had. The members, as far as intelligence is concerned, vary
greatly. There are those of average intelligence and there
are less intelligent members of the organizations. If a
judgement is to be passed here, which also affects less
intelligent members of the organizations and condemns them,
then, it is a basic principle of law that this should not be
done on the basis of what the intelligent members of the
organizations might and could have known; that would be an
injustice to the average persons and the less intelligent.
Not even the average persons can be taken as a basis, since
this would be an injustice to the still less intelligent,
who would be included in and affected by this judgement.In
conclusion I should like to point out that yesterday's
debate on the question of the effect of the judgement which
this Court is to pass confirmed in full measure the fears of
the defence counsel. Mr. Justice Jackson declared that this
judgement would have the character of a declaration. This is
not compatible with the statement which Lieutenant- General
Clay, the deputy Military Governor of the American occupied
Zone, made yesterday in an interview for the "Neue Zeitung,"
the American paper for the German population. I should like
to quote a sentence from the latest issue which refutes Mr.
Justice Jackson's opinion. Lieutenant-General Clay declares
in regard to the question of the fate of th03e interned in
the United States zone of occupation:-

  "The decision of the Nuremberg Tribunal will decide what
  will happen to them. Their number is at present 280,000
  to 300,000. Should the
                                                  [Page 126]
  International Tribunal at Nuremberg, however, consider
  all the members of the indicted National Socialist
  organizations war criminals, then the number will be
  increased to 500,000 or 600,000."

The declaration made by Mr. Justice Jackson yesterday that
no mass retribution is intended could be made only in
reference to the present standpoint of his government. But
there is no guarantee that other governments will not take
another stand, or that his government, which is not bound to
Justice Jackson's opinion, will not alter its stand.

I should like to conclude with this remark: Justice Jackson
mentioned the shock which the combination of the Charter and
decision desired by the prosecution in connection with
Article No. 10 has been to the defence. I believe that the
effect of this shock is not confined to the defence alone,
but affects all people who are interested in justice for if
the combination of these various laws gives the National
Courts the opportunity to call millions of members of
organizations to account among whom, as justice Jackson also
could not deny yesterday, there are innocent people - and if
punishments for mere membership, ranging from a fine to the
death sentence, are provided, then it is the duty of the
defence to point out that the procedure here obviously
threatens to deviate from the basis of law and will
necessarily lead to arbitrary action.

If Mr. Justice Jackson then in answer to this refers to the
effect of shock in connection with the death of many Jews,
one can say that those things happened outside the law and
in the name of force. This Charter and this Tribunal,
however, want to do away with force and put justice in its
place. But justice must be clear and it must be sure.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, the
Tribunal said earlier that certain questions had been asked
of me. I am perfectly prepared to answer the three questions
if the Tribunal desires their time to be occupied by my so

THE PRESIDENT: I do not think the Tribunal wishes to hear
any further arguments unless you particularly want to answer

SIR DAVID MAXWELL FYFF: I did not intend to argue at all. It
was only that Dr. Dix put two questions to me on which he
asked my view, and Dr. Servatius one, but I am in the hands
of the Tribunal. I do not want it to be thought that the
prosecution is not prepared to answer the questions.

THE PRESIDENT: If you can answer them shortly, we should be
quite glad to hear them.

SIR DAVID MAXWELL FYFE: The first question that Dr. Dix
asked me was to clarify what I had said about the
"Fuehrerprinzip" in relation to the Reichsregierung. I can
answer that in two sentences. I said that, in addition to
the ordinary support which members of the Reichsregierung in
1933 gave to Hitler under the Fuehrerprinzip, they entrusted
their consciences and wills to him and adopted completely
his points of view.

In order that Dr. Dix may be under no misapprehension with
regard to his client, the case for the prosecution may be
put in the words of Dr. Goebbels, one of the conspirators,
on 21st of November, 1934, in conversation with Dr. Schacht:

  "I assured myself that he absolutely represents our point
  of view. He is one of the few who accepts the Fuehrer's
  position entirely."

The second point was on the question of the Party programme
in relation to the Treaty of Versailles and the Anschluss.
Dr. Dix asked me to deal with those who desired to effect
the aims of the Party programme in a peaceful way. The
prosecution says that that does not arise: that the Party
programme must be considered in the background of Hitler's
and other publications as to the use of

                                                  [Page 127]

force and also as to the existing state of things in the
relationship of Germany with the Western powers and also of
treaty obligation to Austria and Czechoslovakia.

The third question that was put to me was by Dr. Servatius
about the Leadership Corps. You will remember, my Lord, that
in the statement of the Tribunal the prosecution was asked,
if it were making any limitation, to make it now. That is
contained in the statement of the Tribunal. The limitation
which we have made, that is, only including the staff in the
case of the Reichsleitung, Gauleitung, and Kreisleitung, and
excluding the staff in the case of the Ortsgruppenleiter,
Zellenleiter, and Blockleiter, is the view to which the
prosecution adheres and which has been agreed by the
different delegations. I wanted Dr. Servatius to know that
that was the position. I do not intend to repeat the reasons
for it which were given by my friend, Mr. Justice Jackson.

THE PRESIDENT: There is only one thing I should like to say.
I think it might be useful to the Tribunal if you have them,
to let us have copies of the British statutes to which Mr.
Justice Jackson referred and also of certain judgements of
the German courts - if you have copies available.

SIR DAVID MAXWELL FYFE: They will be found for the Tribunal
and the Tribunal will receive them within the shortest
possible time.

THE PRESIDENT: Mr. Dodd, I understand that you have an
affidavit which you wish to put in with reference to the
High Command?

MR. DODD: Yes, we have one. We located this affidavit on
Thursday; the Tribunal had inquired about it on the
afternoon of the day before, on Wednesday, I believe it was.
We have prepared for the Tribunal a list of the officers
comprising the German General Staff and High Command as
defined by the Indictment in Appendix "B." The list was
compiled from official sources in the Admiralty Office of
Great Britain, the War Office of Great Britain, and the Air
Ministry of Great Britain, and supplementary information was
obtained from senior German officers, now prisoners of war
in England and in Germany. The list is attached to this
affidavit as we intended to submit it this morning to the
Tribunal, and the affidavit describes the source from which
this information was obtained and it points out that the
list does not purport to be exhaustive or necessarily
correct in every detail. It is, however, substantially a
complete list of the members of the General Staff and of the
High Command and of the High Command Group, and on the basis
of this compilation there appear to have been a total of a
hundred and fifty members, of whom a hundred and fourteen
are thought to be living at the present time. I wish to
offer the list formally, together with this affidavit, as
Exhibit USA 778. I ask that it be accepted without reading.
However, of course, if the Tribunal would like it read over
the public address system, I should be glad to do so.

THE PRESIDENT: No, I do not think you need read it over;
copies have been given to the defence?

MR. DODD: Yes, they have, your Honour. They have been given
to the defence.

THE PRESIDENT: Very well. Thank you.

MR. DODD: Colonel Smirnov, if your Honour pleases, is
prepared to read the document with reference to Stalag Luft
3. If the Tribunal would like, we will have him do so.

THE PRESIDENT: I think that might perhaps be done on Monday

MR. DODD: Very well.

THE PRESIDENT: The Tribunal will now adjourn.

(The Tribunal adjourned until 4th March, 1946, at 1000 hours.)

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