The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/22

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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

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

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

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

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-

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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

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

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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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