Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-214.14 Last-Modified: 2001/02/26 [SIR DAVID MAXWELL FYFE, Continued] IV. THE CRIMINAL AIMS AND METHODS OF EACH OF THE ORGANIZATIONS WERE KNOWN OR SHOULD HAVE BEEN KNOWN TO THE MEMBERSHIP All members of the Reich Cabinet had full knowledge of the functions and activities of the Cabinet. They carried out their work together. They met as a body. They considered proposed measures as a group, and they acted as a Cabinet. Sometimes they met as the Reich Cabinet, sometimes they met as the Reich Defence Council. But in every case they jointly considered proposed legislation and enacted the laws which gave the rubber stamp of legality to the machinations of the leading conspirators. From the budgetary matters of the Reich alone, if from no other source, the members of the Cabinet, each year of the Nazi regime, were of necessity informed to a very extensive degree on all matters that were going on in Germany. They knew about the concentration camp system because they voted the money for maintenance of concentration camps, and because their ministers inspected these camps. They knew about the plans for aggressive war because they laid the legislative groundwork for the war economy. They knew about the forced labour of prisoners of war in armament industries because they planned it even in advance of war. They prepared the political plans for the entire programme of aggression and of aggrandizement. Planning requires consultation, and consultation imparts knowledge. Any member of the SA who could read had full knowledge of the aims and objectives of the SA. The weekly periodical Der SA Mann and the monthly periodical Der SA Fuehrer stated time and again the purposes, objectives, tasks and methods of the SA. The duties and activities of the SA in fighting in the streets, abusing political opponents, and in chastising Jews, are stated in every issue of those publications. The para-military nature of the organization was self-evident. The SA participated in election proceedings, in the plan to set fire to the Reichstag, in anti-Jewish pogroms and boycott activities. Its activities were widespread and well known and its criminality was open and notorious. Much of this infamy was commonly known throughout the world. Indeed Dr. Wilhelm Hogner, the Prime Minister of Bavaria, stated in his affidavit: [Page 309] "The gross excesses of the SA and SS in the service of the NSDAP were accomplished so publicly that the whole populace knew of them. Everyone who entered these organizations as a member knew of such excesses." It is stretching reason and experience too far to believe that SA members in Germany knew less than non-members abroad. The Political Leaders dealt in information and in propaganda. They were the agents of the ideology, and the political detectives who checked on the reactions of the people. Knowledge for them was a two-way circuit. They knew the plan and its operations and they learned of its effects. A typical example is found in the order to lynch Allied airmen. This order had to be passed throughout the Leadership Corps in order to reach the lower echelons who were to carry out the lynchings. They saw to it that the order was carried out and they made reports on its effectiveness. There were no secrets in any Nazi cell or block unknown to them. The turn of a radio dial - the facial expression of disapproval - the inviolate secrets between cleric and suppliant - the ancient trust between father and son - even the sacred confidences of marriage - were the stock-in-trade. Knowledge was their business. Every member of the SS took an oath of obedience unto death to Hitler, and every member of the SS was indoctrinated in the full meanings of Hitlerian ideology. In 1936, Himmler, in describing the SS as an anti-Bolshevistic fighting organization, openly stated: "We shall take care that never again in Germany, the heart of Europe, will the Jewish- Bolshevistic revolution of sub-humans be able to be kindled either from within or through emissaries from without." Can it be doubted that SS men understood the meaning of those words? Or of Himmler's confession: "I know that there are some people in Germany who become sick when they see these black coats. We understand the reason for this and do not expect that we shall be loved by too many." The sickness which overcame people when they saw the black coats was the sickness of fear - fear of the brutal methods of the SS, the murders they committed on the streets, and the beatings they inflicted in the concentration camps. It was known to everyone that black-coated SS men carried out the murders of 30th June, 1934. Von Mannstein testified that soldiers so feared the evil of the SS that they were afraid to report SS mass killings in the East. The knowledge that was necessary to bind the SS organization was the knowledge that a member of the Death's Head Battalion had of atrocities committed in the concentration camps, that a member of the anti-partisan bands had of the killings, kidnappings and plunder that went on behind the fighting lines, that a member of the SS Panzer Divisions had of the killings of prisoners of war, or that a member of the SS Medical Corps had of the savage experiments on human beings. This knowledge was diffused by frequent changes in their duties. The Death's Head Battalions, which at first were charged with the guarding of concentration camp inmates, subsequently were put into the fighting troops, and the Waffen SS were used for guarding concentration camps and for carrying out exterminations in annihilation centres. The letters SS came generally to be known as the symbol for an organization both sinister and savage. The objectives of the Gestapo were laid down by law and discussed time and time again in semi-official publications such as Der Volkischer Beobachter, and Das Archiv, the magazine of the German Police, and Best's basic handbook on the German Police. Every member knew that the Gestapo was the special police force set up by Goering and developed by Himmler to strike down potential opponents of the tyranny. Every member knew that the Gestapo operated outside the law, that the Gestapo could arrest on its own authority and imprison on its independent judgment. Every member knew that the Gestapo was the agency which filled the concentration camps with political opponents. All knew that the Gestapo was organized for the specific purpose of persecuting the victims of Nazi oppression - the Jews, the Communists, and the Churches. The right to use torture in interrogations must have been known to all who interrogated. [Page 310] There could be no secrecy as to the criminal aims of the Gestapo or the criminal methods by which this primary agency of terror carried out its work. That it was an instrument of terror was known not merely by its members - it was known throughout Germany and Europe, and in every country of the world, where the very name Gestapo became the watchword of terror and fear. We ask that a common-sense and realistic test of knowledge be applied by the Tribunal in judging these organizations for what they are, the most vicious and evil of all Nazi inventions. Surely they shall not escape condemnation for the vast crimes they committed through a false and flimsy defence of ignorance in their own circles. For long, long years after this hall is emptied and for centuries beyond present perspective, the roll-call of terror against humankind will be led by these appellations - Nazi, Nazi Party Leadership, SA, SD, SS, and Gestapo. V. THERE IS IN THE DOCK A REPRESENTATIVE MEMBER OF EACH ORGANIZATION GUILTY OF SOME ACT ON THE BASIS OF WHICH THE ORGANIZATION MAY BE DECLARED CRIMINAL The Charter requirement, that there be a member of each organization in the dock who is guilty of an offence relating to the organization of which he is a member, was made for the purpose of assuring that there would be present before the Tribunal someone who could speak for each organization. The great number of witnesses who have appeared before the Commission and the Tribunal on behalf of the organizations has, in effect, made superfluous this Charter protection to the organizations. Over 300,000 members of these organizations have been heard either in person or by affidavit. The measure of criminality of each organization is not limited to the acts committed by the defendant in the dock who was a member of the organization. It is wholly sufficient to meet the Charter requirements if the defendant member is guilty of some crime relating to his position as a member of the organization. In every case the criminality of the named organizations is based upon evidence which greatly surpasses the specific criminal acts of the defendants. The concept of membership stated in the Indictment in this connection is in no sense a technical one. The word representative might as well have been used, since the object of the provision was to ensure that there would be some defendant qualified to speak for or otherwise represent each of the named organizations. Seventeen of the twenty-two individual defendants were members of the Reich Cabinet. All of these defendants participated to a greater or lesser degree in the meetings of the Reich Cabinet, of the Secret Cabinet Council, and of the Reich Defence Council. All of them considered, acted upon, and participated in the enactment of the legislation which led to the instigation of wars of aggression and the commission of discriminatory acts against racial minorities. The criminality of each of these defendants is founded in part upon his participation in the supreme legislative body of the Nazi system, the Reich Cabinet. Ten of the individual defendants were members of the Leadership Corps. The activities of Gauleiter von Schirach and Streicher are illustrative of the criminality of all of these defendants in their capacity as leaders of the Nazi Party. It was as Gauleiter of Franconia that Streicher carried out his venomous campaign against the Jews, and it was as Gauleiter of Vienna that Schirach exploited slave labour. Nine of the defendants were SS members. It is hardly necessary to go beyond SS Obergruppenfuehrer Kaltenbrunner as a representative of this organization. Here is a defendant who was the head of the most powerful department in the entire SS, the Reich Security Main Office. His activities in directing this organization need no amplification. His shame disgraces all. Eight of the defendants were members of the SA, of which Goering assumed command in the year 1923 at the very inception of the Nazi struggle for power. [Page 311] It was Goering who directed the SA in the Munich Putsch, and it was Goering who built and made of the SA a fighting body of street rowdies. Goering and Kaltenbrunner were members of the Gestapo. Goering, the founder of the Gestapo, bragged that every Gestapo bullet fired was his bullet, and that he assumed full responsibility for the acts of the Gestapo and was not afraid to do so. As chief of the Reich Security Main Office, Kaltenbrunner had direct responsibility for the Gestapo. The Tribunal has seen orders for commitments to concentration camps carrying his typed or facsimile signature, it has reviewed evidence that executions in concentration camps were issued in his name, and it has examined many criminal orders from him, as Chief of the Security Police and SD, to regional Gestapo offices. The integration of defendants and organizations is further demonstrated by the fact that most of the defendants were members of more than one of the named organizations. Frank, Frick, Goering, and Bormann were members of four. Cabinet members Ribbentrop and Neurath were SS generals. SA Generals Rosenberg and Schirach were Cabinet members. Gauleiter Sauckel and Streicher were SA generals. Field-Marshal Keitel and Admiral Donitz were Cabinet members. The complete significance of this integration is shown in the sinister murder of the French General Mesny. This murder was directed and planned by SS Obergruppenfuehrer Kaltenbrunner, as head of the Gestapo and SD, and by SS Obergruppenfuehrer Ribbentrop, as a member of the Reich Cabinet. Kaltenbrunner worked out the mechanics of the murder and Ribbentrop worked out the plan of deception. Counsel for the Gestapo argued that the murder was accomplished by the Reich Criminal Police rather than by the Gestapo since at the time Panzinger, who worked out the details, had succeeded Nebe as chief of Office V of the RSHA. But there is nothing to show that Panzinger relinquished the post he had held for years as head of the department in the Gestapo responsible for special actions and assassinations. The murder of General Mesny was a political action, a matter under cognizance of the Gestapo, not of the Criminal Police. If it is contended that this nefarious episode was an act of reprisal, then I ask the Tribunal to bear in mind that reprisals against prisoners of war are expressly forbidden under the 1929 Convention to which Germany was a signatory. The whole macabre tragedy, from the faked removal of Mesny from the officers' prisoner-of-war camp at Koenigstein to the sacrilegious ceremony attending the burial of his ashes with military honours at Dresden, required the connivance and action of the Reich Cabinet, the military men, the SS, the SD, and the Gestapo. Throughout this particularly sad and sordid episode there is evident the outstanding fact of all Nazism - hypocrisy. This was white collar homicide, custom built for deceit, starched up with foreign office formality, bearing the cold sheen of Kaltenbrunner's SD and Gestapo, and supported and sustained by the outwardly respectable yoke of the professional army. Mr. President: Counsel for the defendant organizations have each taken a large part of their time in arguing the legal principles which derive from the Charter, and, in many cases, seek to go behind the Charter itself. They have argued that the procedure envisioned by the Charter amounts to collective punishment, that the idea of fastening criminality on organizations is unique in law and that the maxim nulla poena sine lege is being violated by these proceedings. I shall not review the legal arguments on this subject, since they were exhaustively covered by Mr. Justice Jackson in his address in February. But I do assert again that we are not here seeking a collective condemnation of individuals; we are seeking to establish one thing - and one thing only, that these organizations which, taken together, fastened the Police State upon Germany and perpetrated these crimes, shall be characterized in history for what they were - organizations the aims, purposes, and actions of which were basically criminal, and which openly violated all tenets of decency and law held in every civilized society. Defence [Page 312] counsel argue that if you declare these organizations criminal, the members will become martyrs. I say that if you exonerate these organizations, the members who took vows of unconditional obedience to Hitler and to Himmler and who committed millions of people to concentration camps, maltreated and starved and murdered thousands more in the names of these organizations, will say: "We are vindicated. What Hitler and Himmler told us was the truth. These organizations to which we gave our unconditional obedience were not criminal organizations and we are not to be censured for having belonged to them." They will find in your acquittal of these organizations justification for these horrible crimes and the opportunity for reviving them in one form or another to inflict again upon the civilized world the terrible consequences of criminal group action. Reference has been made in the argument to the Sedition Act of 1940. This Act was rot cited, as was suggested, to establish an identity of legal situations between the Act and the Charter of this Tribunal. It was cited only to show that the concept of organizational criminality is not foreign to Anglo-American jurisprudence. Under the Sedition Act, each person indicted has the opportunity of resisting in Court the charge of criminality of the organization to which he is accused of belonging. But that is not to say that, apart from constitutional questions which are inapplicable here, the Congress of the United States could not provide, as in this Charter, that the criminal character of the organization should first be litigated in a general proceeding in which all members are given a chance of appearing in person or by representation, reserving their personal defences to subsequent trials in which they may contest all questions except the single question of whether the organization was criminal. What we seek here is not a criminal conviction of the members of these organizations. Their individual criminality is not an issue before this Tribunal. The only issue is whether the Tribunal shall or shall not declare these organizations to have been criminal. The very anonymity which the Nazis intended to give to crime by the use of these organizations plagues us to the end of this Trial. After these proceedings are concluded, this same organizational anonymity will plague the Allied Powers in seeking to bring to book those who are responsible for these terrible offences. It is a sobering fact that the vast majority of the crimes committed in the names of these organizations must go unpunished. But Nazism must not escape by this route which it made for itself; it must not survive in secret and undenounced organizational entities to prepare a new onslaught against civilization. By a declaration of criminality against these organizations, the Tribunal will give a warning to not only the people of Germany but the people of the whole world. Mankind will know: that no crime will go unpunished because it was committed in the name of a political party or of a State, that no crime will be passed by because it is too big; that no criminals will avoid punishment because they are too many. On 28th February, 1946, in this courtroom, the Chief Prosecutor for the United States of America, Mr. Justice Robert H. Jackson, made a statement before this Tribunal concerning the criminality of these organizations. That statement represents the attitude of the United States. I can do no better than to remind the Tribunal of it again: "In administering preventive justice with a view to forestalling repetition of these Crimes Against Peace, Crimes Against Humanity and War Crimes, it would be a greater catastrophe to acquit these organizations than it would be to acquit the entire twenty-two individual defendants in the box. These defendants' power for harm is past. They are discredited men. That of these organizations goes on. If these organizations are exonerated here the German people will infer that they did no wrong, and they will easily be regimented in reconstituted organizations under new names behind the same programme. In administering retributive justice it would be possible to exonerate these organizations only by concluding that no crimes have been committed by the [Page 313] Nazi regime. For these organizations' sponsorship of every Nazi purpose and their confederation to execute every measure to attain these ends is beyond denial. A failure to condemn these organizations under the terms of the Charter can only mean that such Nazi ends and means cannot be considered criminal and that the Charter of the Tribunal declaring them so is a nullity." THE PRESIDENT: The Tribunal will adjourn. (The Tribunal adjourned until Friday, 30th August, 1946, at l000 hours.)
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