The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/02/21

[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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