The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                  [Page 137]

TWO HUNDRED AND TWELFTH DAY

TUESDAY, 27th AUGUST, 1946

DR. LATERNSER (for the General Staff and OKW): Mr.
President, I should like to take two minutes of the
Tribunal's time. Yesterday, after the conclusion of the
interrogation of the witness Schreiber, I received a written
report to the effect that, first of all, research work as
far as bacteriology was concerned was expressly ordered to
be limited to defence, and secondly, that a suggestion of
the Army Medical Inspectorate in the autumn of 1943, that
all means for an attack on - should be exhausted, was
strongly objected to by the OKW and particularly by Field-
Marshal Keitel, who pointed out that this was prohibited,
and could in no way be considered.

This material I gathered from a letter which was put on my
desk yesterday, a letter which I read yesterday evening for
the first time.

These two points which I have just quoted as proof can be
testified by Colonel Birkhoff of the General Staff who is at
present interned in the camp at Dachau. I propose that we
interrogate this witness and confront him with the witness
Schreiber.

I assume that this officer is the same Colonel who presided
over the secret session mentioned by the witness Schreiber.
The witness is at Dachau. He could appear before this
Tribunal tomorrow. My interrogation would take, at the most,
twenty minutes. I consider the bringing of this proof
absolutely essential in the interests of truth. I have
submitted my application to the Tribunal in writing.

THE PRESIDENT: The Tribunal will consider your application.
Perhaps the Tribunal ought to hear if the prosecution have
anything to say in answer to the application made by Dr.
Laternser. The Tribunal would also like to see the report
and the letter to which Dr. Laternser referred.

SIR DAVID MAXWELL FYFE: If my Lord will just allow me a
moment until I see Colonel Smirnov.

THE PRESIDENT: Certainly.

DR. LATERNSER: Mr. President, the letter is from General
Warlimont, who is at present in Nuremberg. He wrote this
letter on the 23rd of August, here in Nuremberg, and I
received it yesterday. I found it on my table after I came
down from the session. I put it in my brief case without
reading it and noted its contents when I arrived home
yesterday.

Perhaps I might call the attention of the High Tribunal to
the fact that in this letter we are told that after the
publication of these bacteriological projects over the radio
this Colonel Birkhoff whom I have just asked for as a
witness came to Warlimont who was still at Dachau at the
time, and told him those facts which I have presented now.

Meanwhile, General Warlimont was transferred to Nuremberg a
few days ago. These are the details connected with this
point.

THE PRESIDENT: Whose report is it?

                                                  [Page 138]

DR. LATERNSER: I was referring, Mr. President, to this
letter from General Warlimont, in which the General tells me
of the statements which Colonel Birkhoff made to him face to
face a few days ago in the camp at Dachau.

These statements are put in parentheses, and I shall be very
happy to submit this letter to the High Tribunal.

SIR DAVID MAXWELL FYFE: There are two points that occur to
me.

First, if Dr. Laternser would let us see the letter, it
might be possible to shorten the matter in that way, to make
some admission as to the statement in the letter. Otherwise
it might be convenient to see an affidavit from the officer
and know what he was going to say, before we occupy the time
by having him examined. If Dr. Laternser would agree to the
prosecution having the letter translated and examined, we
should be able to make a communication to him and, if
necessary, to the Tribunal in the course of the day.

THE PRESIDENT: That seems a convenient course, and
particularly in view of the fact that the Tribunal expect to
finish the entire hearing of the case this week, certainly
by Saturday evening, and it will be, therefore, very
difficult to get an affidavit by this Colonel Birkhoff
before that time. Therefore, if the prosecution are able to
agree that Colonel Birkhoff would give that evidence, that
probably would be the best way of dealing with the matter.

SIR DAVID MAXWELL FYFE: If your Lordship please, then if Dr.
Laternser would allow us to have the letter, we will have it
translated and looked into in the course of the day.

THE PRESIDENT: Yes.

DR. LATERNSER: Mr. President, if the witness can be called
here through a request by telephone, then I can take his
affidavit here or interrogate him briefly. That would be the
quickest way. If I have to write to the camp first in order
to get the affidavit that way, that would take more time. I
assume that the telephone connection is such that we can
still call Dachau today to have the witness brought here,
and then we can discuss how this evidence will be presented.

THE PRESIDENT: We will see first what the prosecution say
after they have seen the letter.

COLONEL POKROVSKY: My Lord, I would like to report that I
tried to satisfy the possibility of confronting the witness
of Dr. Laternser with Schreiber, but this possibility,
unfortunately, has been excluded because Schreiber has been
sent back into the prisoner-of-war camp. Thus it is
impossible to confront the two witnesses because Dr.
Laternser presented his request too late. The Soviet
prosecution does not think that it would be advisable to
call the witness requested by Dr. Laternser, especially
since the witness requested by Dr. Laternser does not, as
far as I know, refute the fact itself that there was a
secret session of the OKW, which, in my opinion, is the most
important fact in that case. That is all that I wanted to
report to the Tribunal on the part of the Soviet
prosecution.

THE PRESIDENT: The Tribunal will await the communication
from the prosecution and they will consider the matter, Dr.
Gawlik.

DR. GAWLIK: May it please the High Tribunal: Yesterday I
paused at the question whether it would be possible at all
to determine those prerequisites which are necessary in
order to declare an organization criminal. I shall continue.

My statements made hitherto should lead to the conclusion
that the evidence of guilt cannot be summarily determined by
drawing conclusions from the number of crimes and the type
of crime committed, from the knowledge of all the members of
these deeds and from their consciousness of their
illegality. It is, on the contrary, necessary that the proof
of the knowledge and consciousness of illegality should only
be considered in special proceedings in the case of each
individual member of the organizations, for it depends on
the circumstances; therefore the individual

                                                  [Page 139]

members must be given the opportunity to reply to them. Even
if the members might have had knowledge of the real facts of
individual criminal acts, that does not prove that they also
knew that their organizations were involved therein.

Now, I shall turn to the next section.

A condemnation of the organizations is furthermore in
opposition with the principle of penal law - nulla poena
sine lege. This principle has already been treated in detail
by the defence counsel of the principal defendants. I shall
not repeat these statements, but only point out briefly the
following points of view:

In his speech of indictment on 20th November, 1945. the
American Chief Prosecutor said that the defendants could not
invoke this principle because they had themselves
transgressed it. This argument in no way concerns the
members of the organizations, because the members had no
influence on the legislation, but were themselves objects of
the legislation.

The Prosecutor of the Union of Soviet Socialist Republics
pointed out in the discussion of this principle in his final
speech on 29th July, 1946, that the Charter of the
International Military Tribunal was an inviolable law and
absolutely had to be carried out.

The Charter is, however, in no way violated and will also be
carried out if the Tribunal considers the principle nulla
poena sine lege and does not condemn the organization, for
Article 9 of the Charter is merely an optional regulation.
(Kann-Vorschrift). The Chief Prosecutor of the Union of
Soviet Socialist Republics further asserted that the Charter
represents principles which are contained in a succession of
international agreements and in the legislation of all
civilized peoples.

International agreements and laws of civilized peoples only
show that punishable offences must be judged in individual
proceedings.

The principle of collective judgment of groups of persons
was up to now unknown in International Law. On the contrary,
it is denied, as said before, by the science of
International Law.

Until the First World War, it was the custom to include in
peace treaties amnesty clauses for war crimes committed.
After the First World War the general principle developed
that individual members of fighting forces might personally
be made responsible after the war for violations of the laws
of war. I refer to Fenwick in International Law, 1924, Page
578.

The declaration of the Chiefs of State of the United States
of America, Great Britain and the Union of Soviet Socialist
Republics of 2nd November, 1943 mentioned by the Prosecutor
of the Soviet Socialist Republics, orders expressly that
individuals shall be made responsible. This declaration
contains no statement to the effect that the collective
condemnation of groups of persons is permissible.

Article 9 of the Charter is therefore not the expression of
an internationally recognized legal maxim. This clause on
the contrary creates a new law and cannot be made applicable
with retroactive force, for instance, for the time since
1921, as proposed by the Chief Prosecutor of the United
States or even for the time from 1933 on, as proposed by the
Prosecutor of the Union of Soviet Socialist Republics in his
final speech on 29th July, 1946.

The condemnation of the organizations is therefore in
opposition to the principle nulla poena sine lege.

In the second section of Part 1, I come to the discussion of
the questions of procedure resulting from Article 9 of the
Charter. In legal procedure, according to that Article, an
organization or group may be said to be criminal.

  (a) In the trial of any individual member of any group or
  organization, and
  
  (b) in connection with any act of which the individual
  may be convicted.

Both these hypotheses must be realized. Of the principal
defendants, only the defendant Kaltenbrunner, Chief of the
Security Police and SD, is involved, as a member of the SD.

                                                  [Page 140]

It can be gathered from the words "in connection with any
act of which the individual may be convicted," that every
act of the member of the organization or group is sufficient
to declare the organization or group as criminal.

This, however, cannot be the meaning and purpose of this
definition, as I should like to illustrate by the Act of the
United States of 28th June, 1940, already quoted.

When persons belonging to one of the associations mentioned
in the Act of 28th June, 1940, are arraigned before a
tribunal in several different proceedings, an admittedly
extensive examination of evidence, but doubtful in its
results, must be effected in each proceeding to determine
whether the association to which the person belongs fulfils
the primary conditions contained in the above legal
stipulations. Then it could happen that in one trial it is
established that the organization had pursued the purpose
named in the Act of 28th June, 1940, while in other trials
the result of the testimony is not considered as sufficient.

In order to avoid these difficulties, it could be decreed by
a provision of the law that the trial be held against one or
several members of the organization, while the other members
who have not yet been accused are given the possibility of a
legal hearing and if a member is condemned on account of his
membership in an organization within the meaning of the Act
of 28th June, 1940, the Tribunal makes the declaration, to
take effect for all members of the organization, that the
organization fulfils the purpose mentioned in the Act of
28th June, 1940.

Such provisions would achieve the following:

  (1) the testimony on the aims, tasks and activities of
  the organization would be taken only once, and
  
  (2) contradictory decisions on the objective tasks, aims
  and activities of the organization would be avoided.

This purpose is apparently also the intention of Article 9
of the Charter. The situation is to be avoided whereby the
Military Tribunals in the individual occupation zones in the
proceedings against the members of the accused
organizations, would have to examine the question of the
character of the organization each time by lengthy
examination of evidence, and perhaps come to contradictory
decisions. To be sure, it would -

THE PRESIDENT: Dr. Gawlik, are you arguing that if any
individual were tried under this Act of June, 1940, the
declaration of this Tribunal under Article 9 would have any
effect in the Trial under that Act of June, 1940? Is that
your argument?

DR. GAWLIK: No, your Lordship. I wanted to explain the
stipulation laid down in Article 9 in line with the Act of
June, 1940. The Act of June, 1940, is something quite
different and has no connection with Article 9. I wanted to
explain in connection with the Act of June, 1940, which was
mentioned by the Chief American Prosecutor, what importance
a stipulation would have such as is set down in Article 9.

THE PRESIDENT: What - what importance are you suggesting it
would have?

DR. GAWLIK: Article 9, as I shall set forth, has the
following significance:

One member must be accused because of his membership in an
organization, an organization which according to Article 6
of this Charter pursues crimes. Then, in this Trial against
one member, all the facts must be cited against this member
because of his membership in the organization, and then the
facts that have been ascertained, about the aims, tasks and
activities of the organization, if a sentence is reached,
can be used in the trials against the other members; only
the objective facts, not the guilt, for guilt is an
individual matter.

Your Lordship, may I cite an explanatory example. Here one
member of the SD would have to be selected and this member
would have to be accused, as I shall set forth, because the
SD was part of an organization which permitted Crimes
Against Peace, War Crimes, and Crimes Against Humanity. If
this member is now punished because of his membership in an
organization of that nature, you

                                                  [Page 141]

are objectively determining that the SD is an organization
of that kind, therefore the objective findings concerning
the aims, tasks and activities of the SD can be used in the
proceedings against the other members.

THE PRESIDENT: Well, I think I follow that argument based
upon the first paragraph of Article 9, is that right? It is
based upon your construction or interpretation of the first
paragraph of Article 9?

DR. GAWLIK: Yes.

THE PRESIDENT: Are you saying that a decision of this
Tribunal upon that would have any importance or effect upon
a trial under the act of 1940?

DR. GAWLIK: No, that is only an example.

THE TRIBUNAL (Judge Biddle): The law of 1940 is a sedition
law, is it not? That is the Sedition Law of 1940?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): You say the prosecution, as it
did in its argument, depended on that act to show that this
type of group condemnation was used in other countries, it
made that analogy?

DR. GAWLIK: Yes, I know -

THE TRIBUNAL (Judge Biddle): Yes, you say that is not a true
analogy.

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): And the reason you say that is
that if one individual were tried under the Act of 1940 - do
you follow?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): First it would be necessary to
show that he belonged to an organization of which the
purpose was to overthrow the Government by force or
violence, right?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): Now, the Court then would have
to decide first the purposes of the organization, right?

DR. GAWLIK: Yes.

THE TRIBUNAL (Judge Biddle): Now, you say also that if a
second individual were, at a later time, tried under that
Act that the Government would again have to prove -

DR. GAWLIK: Yes.


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