The Nizkor Project: Remembering the Holocaust (Shoah)

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[SIR DAVID MAXWELL FYFE, Continued]

Let me conclude by reminding you of the opinion of the
Supreme Court - the supreme guardian of National Socialist
honour and discipline, to whose august authority and
jurisdiction the members of all these organizations were
subject. Of the murders committed during the 1938
demonstrations by Hoheitstrager and members of the SA and
SS, the investigation of which had been entrusted to the
Secret State Police and the Party Jurisdiction, of Gauleiter
and other Political Leaders, it was pleaded that "in such
cases as when Jews were killed without an order or contrary
to orders, ignoble motives could not be determined."

The purpose of those proceedings in the Party Court was "to
protect those Party comrades who, impelled by decent
National Socialist attitude and initiative, had overshot
their mark."

In those few lines you have the secret of all the death and
suffering, the horror and tragedy, that these defendants and
the members of these organizations have brought upon the
world. You see to what depths of evil they corrupted the
human conscience. No ignoble motive! The murder of women and
children - the "decent National Socialist attitude and
initiative!" Such was the National Socialist creed which the
members of these organizations fanatically accepted, the
creed which - can one doubt? - they still cherish and, given
the opportunity to do so, would revive.

HIGH COMMAND AND GENERAL STAFF

It is not my intention to trespass on the ground which will
be covered so well by my colleagues. Nevertheless I want to
state, as clearly and emphatically as it may be stated, that
the British Delegation unreservedly joins them in the
request for the condemnation of the group indicted as the
General Staff and High Command.

                                                  [Page 290]

The men involved have joined in wars which they knew were
unjust wars of aggression. They have borne essential parts
in the deeds which in the hands of their immediate
perpetrators are undeniably War Crimes and Crimes Against
Humanity. Yet they protest their innocence.

Our case against them has as clear a basis on the facts of
this case as in the lessons of history.

They carried out orders which, on the admission of many of
them, bit deep into the remnants of their consciences. They
knew that they were doing what was wrong, but they now say
"Befehl ist Befehl" - an order is an order.

All decent men find it difficult to blame others for absence
of moral courage - they are only too conscious of their own
failings in that direction. But there comes a point when,
faced with crimes which are obvious murder or barbarity,
there is a higher duty. Even Dr. Laternser admitted this was
so. His suggestion to the witness Schreiber that he ought to
have protested at the Army staff's proposals for
bacteriological warfare came strangely on behalf of these
men whose very defence has been to declare the impossibility
and uselessness of protest. What nonsense - what utter
nonsense - is this which you have been asked to listen to by
these defendants and their generals, when their own counsel,
to discredit a witness, must ask the very question which the
prosecution has itself been asking since the day this trial
began. In fairness to all military tradition it should not
go forth that soldiers have sheltered behind the letter of a
command from facing moral problems - and deciding them,
rightly or wrongly, as moral problems. Great captains are
not automata to be weighed against a rubber stamp. I need
not traverse the history of our own military figures - the
philosophy of Montrose, the brooding thoughts of Marshal
Ney, the troubled heart of Robert E. Lee in 1861, to find
examples. Two of the greatest names in German military
history spring to one's mind: von Clausewitz leaving the
Prussian Army to serve in that of Russia; Yorck von
Wartemburg making his decision of neutrality - both put what
they deemed the needs of Europe and humanity above the
orders of the moment. How much more clear and obvious was
the duty when the work of drafting, issuing and carrying out
the "Nacht and Nebel" Decree, the Commando Order, the
Commissar Order, Hitler's order to murder the 50 Air Force
officers, meant the defiling of every idea which every
soldier cherishes and holds dear; when - as all of them who
ever served upon the Eastern Front could see with their own
eyes - they were asked to support and co-operate in a
calculated system of mass extermination and utter brutality.

These men, of all men, knew their leader to be a callous
murderer, yet for years they had met in conference after
conference to sit at his feet and listen to his words. They
fed his lust for power and enslavement with the best of
their professional skill. While the defenseless peoples of
the East, the men, women and children of Poland, of the
Soviet Union and of the Baltic States were being
deliberately slaughtered and deported into slavery to allow
for German Lebensraum, these men talked of the necessities
of war. When their own cities were bombed. and Germans
killed, they called it murder. Only in July, 1944, when
Hitler's star was dimmed, did three field-marshals and five
colonel-generals recognize that he was murdering also their
own country, and take action. When that star was rising in
victory they had hailed it, and ignored the blood-red colour
of the clouds from which it rose.

So much for the facts and the merits. It is perhaps
permissible to say one word on the construction of the
Charter. The use of the two words "group" or "organization"
surely connotes that the entity in question may have been
either formally organized by the Nazis or selected by the
prosecution as a group which existed in living reality. This
group was united by its special knowledge given at so many
conferences, and voluntarily bound by the transmission of
those criminal orders. For that reason we ask that it should
be condemned.

                                                  [Page 291]

REICHSREGIERUNG

With regard to the Reichsregierung also I only desire to
make clear that the British prosecution is again asking
unhesitatingly for a conviction. Beyond this I wish to make
two points only.

Some question has been raised as to the position of those
known Nazis who joined the Cabinet in 1933. If anyone in
that Cabinet did not know to what he was committing himself
on 30th January, 1933, he had a very good idea in March when
the Jews were attacked. His knowledge increased in April
when the whole nation was organized in boycotting the Jews,
and the official figures of 20,000 people under arrest were
given in the German Press. In June, 1934, he knew that
murder was being used as an instrument of policy. In 1935
and 1936 he knew that the foreign policy was being carried
on at the calculated risk of war.

The other point on which I want to comment is the picture
given by the defence of ministers in complete ignorance of
what was going on. In my submission, government does not
function like that. Whether totalitarian or democratic, a
government can only act by dealing with human beings. The
lives of human beings are not lived in watertight
compartments; their infinitely varying interests are
inextricably interlocked. The most completely authoritarian
minister must consider the repercussions of his actions on
the acts of his colleagues. In other words, he must know
what is going on.

It is because the men of this group knew what was going on,
supported it and took the principal positions and richest
rewards of the State for themselves as the price of such
support, that we ask for the conviction of the organization
today.

I have endeavoured to show how the SD and the Gestapo fit
into the scheme of the Nazi State. As one would expect, the
evidence that I have mentioned introduces them in
innumerable ways. Beyond once more emphasizing my support of
my colleagues' plea for their conviction I do not intend to
comment further upon those organizations.

CONCLUSION

I am deeply conscious that one of the greatest difficulties,
and not the least of the dangers, of this Trial is that
those of us who have been engaged day in and day out for
nine months have reached the saturation point of horror.
Shakespeare attempted to picture that saturation point in
the memorable lines:

  "Blood and destruction shall be so in use
  And dreadful objects so familiar
  That mothers shall but smile when they behold
  Their infants quartered with the hands of war;
  All pity chok'd with custom of fell deeds."

It is only when we stand a little apart from what has been
our daily companion for forty weeks that we realize that the
"domestic fury and fierce civil strife," the results of
which Marc Antony was prophesying, are an inconsiderable
bagatelle beside the facts which we have had to consider.

It is not merely the quantity of horrors - although these
organizations have been the instruments of death for
22,000,000 people - it is the quality of cruelty which
produced the gas chambers of Auschwitz or the routine
shooting of Jewish children throughout a continent claiming
to be civilized. There is not one of these organizations
which is not directly connected with the sorry trade in
murder in a brutal form. Who can doubt that the Reich
Cabinet knew of the euthanasia used to conserve the physical
resources of Germany for war? It is beyond question that the
High Command and General Staff passed on these orders of
which you have heard so much and which are all reduced in
the end to plain murder; the Leadership Corps shared in
killing Jews and ruining the bodies of slave labourers. I
have simply to mention the SS and the crimes come unbidden
into the mind without any words of mine. Conniving,
assisting and finding a

                                                  [Page 292]

reason for these crimes were the SD and the Gestapo. The SA
trained its Baltic recruits to reach the SA standard which
came to fruition in the ghetto of Kaunas or the pit at
Vilna.

The late President Woodrow Wilson once said:

  "It is indispensable that the Governments associated
  against Germany should know beyond a peradventure with
  whom they are dealing."

If Europe is to be cleansed of Nazi evil it is indispensable
that you and the world should know these organizations for
what they are.

It has been our sombre task to assist you to this knowledge:
having done so, we sometimes wonder if the stench of death
will ever wholly pass from our nostrils. But we are
determined to do our utmost to see that it will pass from
Germany, and that the spirit which produced it will be
exorcized. It may be presumptuous for lawyers, who do not
claim to be more than the cement of society, to speculate or
even dream of what we wish to see in its place. But I give
you the faith of a lawyer. Some things are surely universal:
tolerance, decency, kindliness. It is because we believe
that there must be a clearance before such qualities will
flourish in peace that we ask you to condemn this
organization of evil.

When such qualities have been given the chance to flourish
in the ground that you have cleared, a great step will have
been taken. It will be a step towards the universal
recognition that -

  "sights and sounds all happy as her day,
  And laughter learnt of friends, and gentleness
  And hearts at peace"

are not the prerogative of any one country. They are the
inalienable heritage mankind.

THE PRESIDENT: The Tribunal will adjourn.

(A recess was taken.)

MR. DODD: Since the 20th day of November, 1945, this
International Military Tribunal has been in almost continual
session. In these many months, a record of more than I5,000
pages has been compiled. Over 300,000 affidavits have been
submitted, about 3,000 documents have been offered and oral
testimony has been heard from some 200 witnesses.

This great mass of evidence, oral and written, almost
exclusively of German origin, has established beyond
question the commission of the crimes of criminal
conspiracy, aggressive war, mass murder, slave labour,
racial and religious persecutions and brutal maltreatment of
millions of innocent people. The four prosecuting Powers
have indicted and held responsible for these frightful
crimes, as individuals, the twenty-two defendants named in
the Indictment.

But the four prosecuting Powers, recognizing that the twenty-
two individual defendants could not by themselves accomplish
the execution of these innumerable crimes, have also named
in the Indictment the Nazi organizations, as the principle
media by and through which these crimes were effected. These
organizations - some Nazi-created, some Nazi-perverted -
were the agencies upon which the defendants relied, and
through which they operated, for the accomplishment of their
criminal purposes over the complacent people of Germany and
over conquered peoples of Europe.

The named organizations fall into two classes. In the first
class are those which are peculiarly Nazi creations, having
no counterpart outside the Nazi regime, and which had no
intrinsically legitimate purpose. This group includes the
Politische Leiter, the SA and the SS. In the second class
are those which existed in one form or another before the
Nazi regime, but which were corrupted by the Nazis. This
group includes the Reich Cabinet, the High Command and
General Staff, and the Gestapo. As to this second class, it
is not our contention that the institutions themselves were
basically criminal, but rather that they became

                                                  [Page 293]

criminal under Nazi domination, although, by its very nature
as a secret political police system, the Gestapo was the
most easily adapted to criminal purposes and became one of
the most effective of all instruments of Nazi criminality.

It would be a mistake to consider these organizations named
in the Indictment as isolated, independently functioning
aggregations of persons, each pursuing separate tasks and
objectives. They were all a part of, and essential to, the
Police State planned by Hitler and fashioned by his clique
into the most absolute tyranny of modern times. That Police
State was the political Frankenstein of our era, which
brought terror and fear to Germany and spread horror and
death throughout the world. The Leadership Corps of the Nazi
Party was its body, the Reich Cabinet its head, its powerful
arms were the Gestapo and the SA, and when it strode over
Europe its legs were the armed forces and the SS. It was
Hitler and his cohorts who created this Police State-
monster, and it brought Germany to shame and the nations of
Europe to ruin.

It would, likewise, be erroneous to view the structure of
this police system as something casual, or its growth and
development as normal political phenomena. For it was
planned from the earliest days by the conspirators. The Nazi
"old fighters" had a design for despotism. They built the SA
at the outset as a private band of strong-arm men to wield
the club against the political opponent and the whip against
the Jew. They established the SS as the dread guard of the
Fuehrer and of themselves. When they seized power they
abolished police protection and substituted police
persecution as the mission of the Gestapo. They wiped out
all semblance of free government and set themselves up in
the Reich Cabinet with plenary powers. They depraved the
highest traditions of military ethics and substituted
"willing tools" for ranking men-at-arms. They obliterated
all other political parties and fastened on the German
people a political strait-jacket in the form of the
Leadership Corps.

Deprive the Nazi conspirators of these organizations and
they could never have accomplished their criminal aims. Take
away the SA and they would have lost the mastery of the
streets; take away the SS and they would have had no
concentration camp system; take away the Gestapo and they
would have had no means of illegal arrest and unlimited
detention; take away the Reich Cabinet and they would have
had no subservient law-making body; take away the truckling
military men and they would not have secretly planned their
attacks or ultimately waged their wars.

The provisions of the Charter empowering the Tribunal to
declare a group or organization criminal, and the functions
of the Tribunal under those provisions have been dealt with
in the legal arguments and memoranda previously submitted to
the Tribunal by the Chief Prosecutors. At that time, in
response to the request of the Tribunal, Mr. Justice Jackson
stated the grounds which, in our view, warrant declaring a
group or organization criminal.

Before now undertaking to summarize the evidence, it may be
well to restate those tests:

  1. It must be a "group" or "organization" within the
  meaning of Article 9 of the Charter - i.e., it must be an
  aggregation of persons, associated in some identifiable
  relationship, having a collective general purpose or
  pursuing a common plan of action.
  
  2. Membership in the organization must have been
  basically voluntary, i.e., the membership of the
  organization as a whole, irrespective of particular cases
  of compulsion against individuals or groups of
  individuals within the organization, must not have been
  due to legal compulsion.
  
  3. It must have participated directly and effectively in
  the accomplishment of the criminal aims of the
  conspiracy, and it must have committed Crimes Against
  Peace, or War Crimes, or Crimes Against Humanity, as
  charged in the Indictment.

                                                  [Page 294]

  4. The criminal aims or methods of the organization must
  have been of such character that its membership in
  general may properly be charged with knowledge of them.
  
  5. Under the Charter the prosecution must also establish
  that at least one of the defendants in the dock who is a
  member of the organization is guilty of some act on the
  basis of which the organization may also be declared
  criminal.

These are the tests of criminality which the American
prosecution has conceded must be met with respect to each
organization before a declaration of criminality as to that
organization is warranted. My distinguished colleague, Sir
David Maxwell Fyfe, has discussed in his address the
evidence against most of the organizations, and the Russian
and French Prosecutors will review specific crimes committed
by these groups. I shall not discuss the High Command, since
it is to be the subject of a special argument by a member of
the American staff. I shall, with the consent of the
Tribunal, address my remarks to the general proposition of
whether the prosecution has sustained the burden of proving
by competent evidence that each of the named organizations
is criminal under all of the principles stated.

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