The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/01/21

[DR. LATERNSER, CONTINUE]

There are no other terms possessing the same value, on the
contrary: the very fact that one must search and search
again even then to find a term and that even then one still
finds only an expression to cover 129 individual persons,
but that from it no organized combination can be shown,
forces us to conclude that a legal or factual set-up, call
it what one will, never existed.

Although these wrong designations and the impossibility of
finding a correct term constitute in themselves strong
arguments against the assumption of a "Group or
Organization," it is still necessary to deal with the legal
conditions which muse be fulfilled in order to be able to
consider the indicted 129 officers at all as a "group" or
"organization," although it might be nameless.

As the Charter does not define the terms "group" and
"organization," it is necessary for me to say a word or two
on the definition of these terms:

In the first place, there is the question as to whether the
term "group" is something different from the term
"organization," or whether these terms are identical. As the
Charter uses both terms side by side, even in the same
sentence, it must be assumed that these two designations
were deliberately chosen in order to emphasize at least a
difference in fact.

Article 9 of the Charter gives rise to justified doubts as
to whether it was actually intended to characterize two
different phenomena, because under this Article the Tribunal
is only authorized to declare the groups and organizations
to be "criminal organizations." Therefore, the Tribunal
cannot declare a "group" to be a "criminal organization" if
it does not possess the corresponding characteristics, that
is to say, if it is not itself also an organization. In this
case, the quality of group would be legally irrelevant as
far as Article 9 is concerned; an unorganized group could
not be declared to be criminal.

Nevertheless, the question of the "formation of a group"
must be re-examined.

As regards the definition, it must be based, according to
the American Chief Prosecutor, on the natural usage of the
language. That means:

The main characteristic of the existence of a "group" of
people is the local co-existence of a multiplicity of
persons. One speaks of a "group picture" if several persons
are shown side by side, of a group of "curious on-lookers"
if a number of people are watching side by side the same
event. From this it follows that the condition which must be
fulfilled to constitute a "group" is also the simultaneous
co-existence of persons. As these two characteristics are
lacking in the case of the group of high ranking generals
and admirals, as defined by the prosecution - these officers
who belong to the most different agencies were never,
neither before nor during the war, locally collected nor
simultaneously and jointly active - there can be no question
of a "group" either in the linguistic or in the factual
meaning of the word.

If this circle of officers cannot be considered as a "group"
because the necessary conditions for the formation of a
"group" are lacking, the question remains as to whether it
was a "group similar to an organization" or even an
"organization." If we take the natural usage of the language
again as our starting-point, we find that the main
characteristic of an organization is the fact of "its being
organized." But a combination of people is only "organized"
if it possesses organs of its own,

                                                  [Page 161]

acting on behalf of the organization, while its creation,
its powers and its activities are based on some sort of a
constitution. Furthermore, this association - irrespective
of whether it be founded in law or may only have an
existence based on sociological fact - must be able to
develop through its own organs a will of its own. An
organized association must be, as the Prosecutor himself
admits, an "entity."

It is true that this "entity" need not find expression in so
concrete a form that it appears as a special subject in law,
but it must at least outwardly show the characteristics just
mentioned, and must constitute as to its substance a
deliberately created voluntary association of several
persons for the pursuit of common purposes.

The main characteristic of an "organization" according to
this definition is the "inner purpose" of the association.
The external form is not alone decisive for its existence;
on the contrary, an associated multiplicity of persons does
not become an "organization," unless its inner purpose is
that of the pursuit of common aims.

As regards the circle of officers concerned, the conditions
are completely lacking both in law and in fact which might
justify the assumption that they constitute a group similar
to an organization, or an organization. Even the most
important condition, namely that of voluntary membership, is
not fulfilled.

These officers did not occupy their positions voluntarily,
nor did they remain in these positions voluntarily. But that
the condition of voluntary membership must be fulfilled has
already been indicated by the Tribunal in its definition of
the points of proof considered relevant, and also the
prosecution has called these conditions essential. It is
true that the military leaders voluntarily selected the
military profession. They did join the Reichswehr
voluntarily in 1920, and in so doing had to commit
themselves for 25 years under a contract. However, they were
promoted to the posts which come under the Indictment
exclusively by reason of their ability, and without any
initiative of their own. By virtue of the commitment entered
into, they could not ask to be retired as long as they were
capable of carrying out their duties, certainly not during
the war, when resignation was explicitly prohibited to them.

These events and facts require no proof, as they are the
same or similar in all the armies in the world. They are
based upon the military power to give orders on the one
hand, and the military obligation to obey on the other.

Thus it is proved that the "General Staff and High Command"
do not in any way constitute an association of persons based
upon voluntary membership.

But it also cannot be assumed that we are here concerned
with an "organization" because the further condition,
namely, the consciousness of these officers that they had
joined an association at the moment of their appointment,
was lacking.

Any citizen who voluntarily joins an organization knows, at
least, that this organization exists, and that he is joining
it.

But these officers were assigned without being questioned to
the posts which are only now to be grouped together by the
prosecution by the arbitrary process of representing them as
a "group" or "organization." How could they, in these
circumstances, have been aware at the time of their
appointment to the various service positions that this
appointment was equivalent to acquiring membership in a kind
of association?

The argument of the prosecution that at an earlier date a
similar association of General Staff officers existed in
what was called the "Schlieffen Society" is irrelevant in
connection with the appreciation of the legal aspect with
which we are here concerned. The "Schlieffen Society," which
only met once a year for a lecture and a report, was
exclusively concerned with cultivating the spirit of
comradeship between the former General Staff officers and
those on active service.

There was not the slightest reason for the German and
Austrian officers on active service, who originated from the
three service branches, to set up a similar association
during the war.

The foundation of a political community was even more out of
the question in view of the traditionally unpolitical
attitude of the whole German officer corps.

                                                  [Page 162]

The idea that a criminal purpose might have caused an
association, as the prosecution would like us to believe,
is. quite absurd.

If, therefore, these officers neither took up their posts
voluntarily nor had the consciousness of joining an
association, or of getting together in an organization, the
sole fact that they occupied the posts covered by the
Indictment cannot, in itself, prove that we are concerned
with an "organization."

There are also the following facts which are opposed to a
deliberate association and the existence of an organization.

A large number of the officers concerned had never met
personally at all. Only some of these officers have ever had
contact with each other in connection with their official
duties.

Every inner homogeneity was lacking in this circle of high-
ranking officers who are alleged to be so unanimous in their
opinions. This trial has more than anything else before
brought out very clearly the divergencies of opinion and
inner oppositions existing among these high-ranking military
leaders.

THE PRESIDENT: We will break off there for a recess.

(A recess was taken until 1400 hours.)

DR. LATERNSER: The absurdity of this "group experiment,"
however, is best illustrated by the inclusion of Himmler in
the circle of these Army officers. It is a well-known fact
that Himmler was the deadly enemy of the Army, and that the
leaders of the armed forces and those of the Waffen SS had
no associations with each other except those occasioned by
purely military operations at the front line. It is
precisely the inclusion of Himmler and of some of the
leaders of the Waffen SS which constitutes a convincing
proof against the existence of this really impossible
institution.

Nor does the time element permit the assumption that we are
concerned with an "organization." The military leaders were
not at their service posts simultaneously, but in office at
such widely separated periods that only a fraction of them
could have been members at the same time. This is shown most
clearly by the charts submitted to the Tribunal. According
to these charts there were only seven generals in 1938, only
twenty-two generals on 7th September, 1939, only thirty-one
generals on 22nd June, 1941, and only fifty-two generals in
November, 1944, that is to say, far less than even half of
the indicted officers were in the positions covered by the
Indictment.

There existed no uniform will on the part of all these 129
officers. Every one of them, it is true, was subjected to
one single will above his own, but only in a military
respect, and not an [sic] regards as existing organized
association. How could these officers, at any time, have
been able to appoint organs of their own for expression of
their will? The constant change in the positions of those
concerned would have excluded any such possibility. Only
nine generals and admirals occupied positions for the entire
duration of the war which would enable them to be included
among the so-called "group." On 4th February, 1938, only six
generals held such positions. Twenty-one generals held
positions coming under the so-called "group" for periods of
only two to two and a half years. Sixty-one officers are
counted as belonging to the "group," although they did not
hold positions for even a year.

Just as the functionaries of a "group" were lacking, so a
constitution or a statute governing the arrival and
withdrawal of members, the authority and the activity of its
functionaries, their election or appointment was lacking.
There existed not a single written or oral provision dealing
with any kind of a community. The prosecution was,
therefore, unable to submit one single document proving the
existence of a "group" or an "organization."

The affidavits submitted to the Tribunal by the prosecution,
which were to prove on the strength of the statements made
by Generals von Brauchitsch, Halder

                                                  [Page 163]

and Blaskowitz that a "group" did exist, have proved to be
quite unsuitable for this purpose as a result of the
corrections which were subsequently made. The hearings of
Field-Marshal von Brauchitsch before this Tribunal, and of
General Halder before the Commission, have shown that the
identical affidavits of both generals constituted a
condensed version of several interviews, drawn up by the
interrogating officer and submitted to them for signature,
and that those written statements were unintelligible in all
the points which are of decisive importance in this
question, without the additional explanations given by the
witnesses before they signed these statements. Consequently,
the interpretation given to those statements by the
prosecution is wrong. The corrections which have now been
made have not been refuted and have thus deprived the
prosecution of its main argument and of every proof in
favour of the existence of a "group."

The same applies to the affidavit of General Blaskowitz,
which was submitted to the Tribunal in the course of these
proceedings. They have also been rectified and completed by
Affidavit 55. Thus, the conclusions drawn by the prosecution
have also in this case proved to be wrong. Nor has a joint
action, which could be regarded as the expression of the
collective will of the organization, been proved in any of
the cases under consideration. It is quite impossible to
give such proof, since this circle of officers had neither
by law nor by nature the capacity to negotiate, and could,
therefore, not have exercised any joint action as an
organization.

Nor did these officers hold any meeting from which the
existence of any kind of an organization might be inferred.
The prosecution is quite wrong if it believes that as a
proof of its theory it can cite military discussions with
Hitler, and different meetings of field commanders.

When from time to time meetings of the Supreme Commander of
the Army were held with the Commanders-in-Chief of the army
groups, or armies, this was always done for purely military
purposes, and the discussions were exclusively concerned
with military questions. The assignment of the Commanders-in-
Chief to widely dispersed theatres of operations and their
permanent and complete absorption by their military duties
made it impossible from the very outset for them to meet for
reasons other than purely military ones. For the same
reason, not even the highest military commanders maintained
close contact with each other, particularly since the
frequently mentioned Fuehrer Order No. 1 limited the
knowledge of each one of these Commanders-in-Chief to his
own sphere, whatever his position might be. As the three
service branches, apart from their operational co-operation
in individual cases, existed side by side in complete
independence, joint discussions of the commanders from the
various service branches were, for this reason, held only on
very rare occasions.

If the prosecution have referred to an affidavit by General
Blaskowitz in order to prove the contrary, the latter's
supplementary affidavit, No. 55, has shown that he was
misunderstood also on this point.

There have never been frequent meetings of the high-ranking
generals in the sense implied by the prosecution. The
prosecution has wrongly interpreted events and acts
resulting from the purely military execution of certain
tasks.

The well-known meetings with Hitler can be used even less as
a proof of the existence of an institution similar to an
organization, as they were held - and this was repeatedly
explained in the course of these proceedings - merely in
order to mow the participants to listen to a speech by
Hitler, and to receive his orders subsequently. Regarded
from the point of view of the commanders, these meetings had
a purely military character.

I may, therefore, sum up as follows

1. The 12 officers concerned merely represent a multiplicity
of persons, who neither in law nor de facto possessed the
capacity to negotiate, and therefore cannot be the object of
a special legal or even penal judgment.

2. The designation "General Staff" and "High Command" are
misleading and wrong.

                                                  [Page 164]

3. The circle of officers concerned was neither a "group"
nor an "organization" nor an institution of organizational
character.

4. Membership, which is clearly defined in any organization,
must in this case be the subject of long-drawn-out
discussions.

5. None of the officers took up his post voluntarily nor was
conscious that he joined an organization, or of having been
a member of it. Most of the so-called "members" did not even
know each other personally, and their attitude to the regime
was widely divergent.

6. There has never been an acting "organ of association"
(Verbandsorgan), never a "constitution" or a "charter."
There has never been a "will of the association" in
evidence, nor has any "action of association"
(Verbandshandlung) been recognizable.

7. The officers concerned, whose names and number we know
exactly, can therefore be held responsible only as
individuals, and only for crimes which they have personally
committed. They were never grouped together collectively,
and therefore they cannot now be grouped together
collectively, merely in order to facilitate their
punishment.

Once in ancient times - after the battle of Aigospotamoi -
generals were to be condemned by a collective verdict for a
kind of crime against humanity. They had failed to bury
their dead.

Thereupon, Socrates rose in court, argued against this
proposition in a passionate speech, and demanded that the
Tribunal should safeguard the principle which was the
absolutely indispensable condition of any just verdict,
namely:

That every military leader could only be indicted as an
individual, and sentenced only in accordance with the
measure of his personal guilt.

Socrates won. The Tribunal maintained the principle in spite
of the opposition of public opinion, and refused to render a
collective verdict.

Should our modern period throw overboard so easily something
which has been looked upon as a fundamental principle of law
for the last 2,000 years?

I believe that a collective indictment and a collective
condemnation are impossible. If only for the reasons which I
have just presented, the Tribunal will have to reject the
motion to declare the so-called "General Staff" and "High
Command" group a criminal organization.


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