Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-70.01 Last-Modified: 1999/11/22 [Page 36] SEVENTIETH DAY THURSDAY, 28th FEBRUARY, 1946 DR. HORN (counsel for defendant Ribbentrop): Mr. President, on Monday when I wished to give my reasons for the application to call Winston Churchill, as witness, the Tribunal asked me to submit this in writing so that the Tribunal could make a decision. The decision that Winston Churchill should not be called as witness was, however, made already on the 26th of February, before the Tribunal received my written application. I assume a mistake has been made, and I ask the Tribunal, to reconsider the question in the light of the reasons set out in my written application. THE PRESIDENT: The Tribunal will reconsider the matter. Mr. Justice Jackson, did you propose to argue first on the question of the organizations? MR. JUSTICE JACKSON: If that is agreeable to the Tribunal that is definitely our plan. We are taking up, as I understand it, the deferred subject of the rules which should guide in governing the criminality of organizations, partly upon our initiative and partly in response to the questions propounded by the Tribunal. The unconditional surrender of Germany created for the victors novel and difficult problems of law and administration. Being the first such surrender of a modernly organised people as a whole, precedents and past experiences are of little help in guiding our policy towards the vanquished. The responsibility implicit in demanding and accepting capitulation of a whole people certainly must include a duty to discriminate justly and intelligently between the opposing elements of that population, which were at variance on policies and conduct which led to the catastrophe. This differentiation is the objective of those provisions of the Charter which authorize this Tribunal to declare organizations or groups to be criminal. Understanding of the problem with which the Tribunal attempts to deal is essential to its interpretation and application. One of the sinister peculiarities of German society at the time of the surrender was that the State itself played only a subordinate role in the exercise of political power, while the really drastic controls over German society were organized ,outside the nominal government. This was accomplished through an elaborate network of closely knit and exclusive organizations of selected volunteers, bound to execute both without delay and without question the commands of the Nazi leaders. These organizations penetrated the whole German life. The country was subdivided into little Nazi principalities of about fifty households each, and every such community had its recognized Party leaders, Party police, and its secret spy system. These were combined into larger units with higher ranking leaders, executioners, and spies, the whole forming a pyramid of power outside the law, with the Fuehrer at its apex, and the local Party officials constituting its broad base, which rested heavily on the German population. The Nazi despotism, therefore, did not consist of these individual defendants alone. A thousand little fuehrers dictated; a thousand imitation Goerings strutted a thousand Schirachs incited the youth; a thousand Sauckels worked slaves; a thousand Streichers and Rosenbergs stirred up hate; a thousand Kaltenbrunners [Page 37] and Pranks tortured and killed; a thousand Schachts and Speers and Funks administered and supported and financed this movement. The Nazi movement was an integrated force in every city and county and hamlet. The Party power resulting from this system of organizations first rivalled and then dominated the power of the State itself. The primary vice of this network of organizations was that they were used to transfer the power of coercing men from the government and the law to the Nazi leaders. Liberty, self-government, and security of person and property do not exist except where the power of coercion is possessed only by the State and is exercised only in obedience to law. The Nazis, however, set up this private system of coercion immune from the law, with Party controlled concentration camps and firing squads to administer privately decreed sanctions. Without responsibility to law and without warrant from any court, they were enabled to seize property and take away liberty and even take life itself. These organizations had a calculated and a decisive part in the barbaric extremes of the Nazi movement. They served primarily to exploit mob psychology and to use the mob. Multiplying the number of persons in a common enterprise always tends to diminish the individual's sense of moral responsibility and to increase his sense of security. The Nazi leaders were masters of that technique. They used these organizations to make, before the German populace, impressive exhibitions of numbers and of power, which have already been shown on the screen. They were used to incite a mob spirit and then riotously to gratify the hates they had inflamed and the Germanic ambitions they had encouraged. These organizations preached and practised violence and terrorism. They provided the systematised, aggressive, and disciplined execution throughout Germany and the occupied countries of the plan for crimes which we have proved. The culmination of this system is represented in the fanatical SS General Ohlendorf, who told this Tribunal without shame or trace of pity how he personally directed the putting to death of 90,000 men, women and children. No tribunal ever listened to a recital of such wholesale murder as this Tribunal heard from him and from Wisliczeny, a fellow officer of the SS. Their own testimony shows the SS responsibility for the extermination programme which took the lives of 5,000,000 Jews - a responsibility which that organization welcomed and discharged methodically, remorselessly and thoroughly. These crimes with which we deal are unprecedented, first because of the shocking number of victims. They are even more shocking and unprecedented because of the large number of people who united their efforts to perpetrate them. All scruples or conscience of a very large part of the German people was committed to the maintenance of these organizations, and their devotees felt no personal sense of guilt as they went from one extreme to another. On the other hand, they developed a contest in cruelty and a competition in crime. Ohlendorf, from the witness stand, accused other SS commanders, whose killings exceeded his, of "exaggerating" their figures. There could be no justice and no wisdom in an occupation policy of Germany which imposed upon passive, unorganized and inarticulate Germans the same burdens as upon those who voluntarily banded themselves together in these powerful and notorious gangs. One of the basic requirements both of justice and of successful administration of the occupation responsibility of our four countries, is a segregation of the organized elements from the masses of Germans for separate treatment. That is the fundamental task with which we must deal here. It seems beyond controversy that to punish a few top leaders but to leave this network of organized bodies in the midst of post-war society would be to foster the nucleus of a new Nazidom. These members are accustomed to an established chain of centralized command, they have formed a habit and developed a technique of both secret and open co-operation. They still nourish a blind devotion to the suspended, [Page 38] but not abandoned, Nazi programme. They will keep alive the hates and ambitions which generated the orgy of crime we have proved. These organizations are the carriers, from this generation to the next, of the infection of aggressive and ruthless war. The Tribunal has seen on the screen how easily an assemblage, that ostensibly is only a common labour force, can in fact be a military outfit training with shovels. The next war and the next pogroms will be hatched in the nests of these organizations as surely as we leave their membership with its prestige and influence undiminished by condemnation and punishment. The menace of these organizations is the more impressive when we consider the demoralized state of German society. It will be years before there can be established in the German State any political authority that is not inexperienced and provisional. It cannot quickly acquire the stability of a government aided by long habit of obedience and traditional respect. The intrigue, obstruction, and possible overthrow, which older and established governments always fear from conspiratorial groups, is a real and present danger to any stable social order in the Germany of today and of tomorrow. In so far as the Charter of this Tribunal contemplates a justice of retribution, it is obvious that it could not overlook these organized instruments and instigators of past crimes. In opening this case, I said that the United States does not seek to convict the whole German people of crime. But it is equally important that this trial shall not serve to absolve the whole German people except the twenty-one men in the dock. The wrongs that have been done to the world by these defendants and their chief confederates was not done by their will and their strength alone. The success of their designs was made possible because great numbers of Germans organized themselves to become the fulcrum and the lever by which the power of these leaders was extended and magnified. If this trial fails to condemn those organized confederates for their share of the responsibility for this catastrophe, it will be construed as their exoneration. But the Charter was not concerned with retributive justice alone. It manifests a constructive policy influenced by exemplary and preventive considerations. The primary objective, of requiring that the surrender of Germany be unconditional, was to clear the way for a reconstruction of German society on such a basis that it will not again threaten the peace of Europe and of the world. Temporary measures of the occupation authorities may, by necessity, and I intend no criticism of them, have been more arbitrary and applied with less discrimination than befits a permanent policy. For example, under the existing denazification policy, no member of the Nazi party or its formations may be employed in any position, other than ordinary labour, in any business enterprise, unless he is found to have been only a nominal Nazi. Persons in certain categories whose standing in the community is one of prominence or influence, are required to be, and others may be, denied further participation in their businesses or professions. It is mandatory to remove or exclude from public office and from positions of importance in quasi-public and private enterprises persons falling within about ninety specified categories, deemed to consist of either active Nazis, Nazi supporters, or militarists. Property of such persons is blocked. Now, it is recognized by the Control Council, as it was by the framers of this Charter, that a permanent long term programme should be based on a more careful and more individual discrimination than was possible with sweeping temporary measures. There is a movement now, within the Control Council, for reconsideration of its whole denazification policy and procedure. The action of this Tribunal in declaring, or in failing to declare, an accused organization criminal, has a vital bearing on this future occupation policy. It was the intent of the Charter to use the procedure of this Tribunal and its judgement to identify and condemn those Nazi and militaristic forces that were so strongly organized as to constitute a continuing menace to the long- term [Page 39] objectives to gain which our respective countries have sacrificed their youth. It is in the light of this great purpose that we must examine the provisions of this Charter. It was obvious that the conventional litigation procedures could not, without some modification, be adapted to this task. No system of jurisprudence has yet evolved any satisfactory technique for handling a great number of common charges against a great mass of accused persons. The number of individual defendants that fairly can be tried in a single proceeding probably does not greatly exceed those now in the dock. Also, the number of separate trials in which the same voluminous evidence as to a common plan must be repeated is very limited in actual practice. Yet, proceedings of the type in which we are engaged are the best assurance the law has ever evolved that decision will be well considered and just. The task of the framers of the Charter was to find some way to overcome the obstacles to practicable and early decision without sacrificing the fairness implicit in hearings. The solution prescribed by the Charter is certainly not faultless, but not one of its critics has ever proposed an alternative that would not either deprive the individual of all hearing or contemplate such a number of long trials that it would break down and be impracticable. In any case, this Charter is the plan adopted by our respective governments and our duty here is to make it work. The plan which was adopted in the Charter is essentially a severance of the general issues, which would be common to all individual trials, from the particular issues, which would differ in each trial. The plan is comparable to that employed in certain war-time legislation of the United States dealt with in the case of Yakus v. United States, in which questions as to the due process quality of the order must be determined in a separate tribunal and cannot be raised by a defendant when he is defending on indictment. Those countries which do not have written constitutions and constitutional issues may find it difficult to follow the logic of that decision, but essentially the plan was to separate general issues relative to the order as a whole from specific issues which would arise when an individual was confronted with a charge of guilt. The general issues under this Charter are to be determined with finality in one trial before the International Tribunal, and in that trial every accused organization must be defended by counsel and must be represented by at least one leading member, and other individuals may apply to be heard. Their applications may be granted if the Tribunal thinks justice requires it. The only issue in this trial concerns the collective criminality of the organization or group. It is to be adjudicated by what amounts to a declaratory judgement. It does not decree any punishment either against the organization or against individual members. The only specification as to the effect of this Tribunal's declaration that an organization is criminal is contained in Article 10, which, if you will bear with me, I will read:- "In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned." Unquestionably, it would have been competent for the Charter to have declared decisively that membership in any of these named organizations is criminal and should be punished accordingly. If there had been such an enactment, it would not have been open to an individual, who was being tried for membership, to contend that the organization was not in fact, criminal. But the framers of the Charter, acting last summer, at a time before the evidence which has been adduced here was even available to us, did not care to find organizations criminal by fiat. They left that issue to determination, after relevant facts were developed by the proceedings. Plainly, the individual is better off because of the procedure of the [Page 40] Charter, which leaves that finding of criminality to this body, after hearings at which the organization must, and the individual may be represented. It is, at least, the best assurance that we could devise, that no mistake would be made in dealing with these organizations. Under the Charter, the groups and organizations named in the Indictment are not on trial in the conventional sense of that term. They are more nearly under investigation as they might be before a Grand jury in Anglo-American practice. Article 9 recognizes a distinction between the declaration of a group or organization as criminal and "the trial of any individual member thereof." The power of the Tribunal to try is confined to persons," and the Charter does not expand that term by definition, as statutes sometimes do, to include other than natural persons. The groups or organizations named in the Indictment were not as entities served with process. The Tribunal is not empowered to impose any sentence upon them as entities. For example, it may not levy a fine upon them even though they have property of the organization, nor convict any person because of membership. It is also to be observed that the Charter does not require subsequent proceedings against anyone. It provides only that the competent national authorities shall have the right to bring individuals to trial for membership therein.
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