Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-70.05 Last-Modified: 1999/11/22 May I say one word about the mechanics of the position? I thought that it would be convenient if the Tribunal and the defence counsel had copies of these suggestions before I address the Tribunal. In pursuance of this, copies have been given to the members of the Tribunal, of course to the court interpreters, and copies in German have been provided for counsel for the organizations and also for counsel for each of the individual defendants. For the convenience of the Tribunal and of counsel, I have circulated two addenda, which contain further references to the transcript and documents on a number of points in the original appendices. These addenda are compiled under the numbers of paragraphs and, although they are in English, should be readily usable by counsel for the defence. The result is that there is the summary in appendices (a) and (b) which I put in, and full reference in all the points in the summary to the transcript and in some cases to documents. It is my intention not to read in full all the matters contained in my appendix (a) and appendix (b) but to indicate how they fit in with the conception of the [Page 53] prosecution on this aspect of the case. I shall, of course, be only too ready to read any portions which may be convenient to the Tribunal. I think it would be best to start from the essential probanda which Mr. Justice Jackson has indicated, and perhaps the Tribunal will bear with me while I repeat his five points. 1. The organization or group in question must be some aggregation of persons (a) in some identifiable relationship, (b) with a collective general purpose. That was Mr. Justice Jackson's first test. 2. Membership in such organization must be generally voluntary, although a minor proportion of involuntary members will not affect the position. 3. The aims of the organizations must be criminal in the sense that its objects included the performance of acts denounced as crimes by Article 6 of the Charter. 4. The criminal aims or methods of the organization must have been of such a character that a reasonable man would have constructive knowledge of the organization which he was joining; that is, that he ought to have known what type of organization he was joining. 5. Some individual defendants, at least one, must have been a member of the organization and must be convicted of some act on the basis of which a declaration of the criminality of the organization can be made. I do not think that I can avoid applying these tests to each of the organizations, but I conceive that this can be done with brevity, and I therefore propose to deal with the organization seriatim. I take first the Reichsregierung. Under Appendix B of the Indictment this group is defined as consisting of three classes:- 1. Members of the ordinary cabinet after 30th January, 1933. The term "ordinary cabinet" is in turn used as meaning - (a)Reich ministers, that is, heads of departments; (b)Reich ministers without portfolio; (c) State ministers acting as Reich ministers (d) Other officials entitled to take part in meetings of the cabinet. 2. Members of the Council of Ministers for the Defence of the Reich. 3. Members of the Secret Cabinet Council. It is submitted that on the evidence placed before the Tribunal there is no doubt that the first of Mr. Justice Jackson's points, point one, is complied with in that there is an identifiable relationship with a collective general purpose, and that this organization is generally voluntary within point two. The aims of the organization are set out in paragraph four of Section A of my Appendix A and the broad submission of the prosecution is shown in paragraph two. Perhaps as that is short, I might be allowed to read it: "Owing to their legislative powers and functions the members of the Reichsregierung gave statutory effect to the policy of the Nazi conspirators, and collectively formed a combination of persons carrying out the executive and administrative decisions of the Nazi conspirators." The prosecution apply that general submission to the crimes constituted by Article 6 of the Charter in paragraphs five, six, seven and eight of that appendix. If the Tribunal would like me to deal further with these paragraphs I should be pleased to read and comment on any that are desired. When it is remembered that the Reichsregierung possesses policy-making, legislative, administrative, and executive powers and functions, and that many of its members held at the same time important positions in the Party and in governmental activities outside the cabinet, enormous political power was concentrated in this group. As I said, the Reichsregierung implemented and gave statutory effect to the programme of the conspirators. If the Tribunal will be good enough to turn to my Appendix B they will see that seventeen of the twenty-one defendants before the Court were members of the [Page 54] Reichsregierung. The prosecution have submitted an enormous body of evidence against these seventeen defendants, and they now submit that it is sufficient to say that these seventeen defendants should be convicted under each count of the Indictment, and therefore under each portion of Article 6 of the Charter; and that they form the connected defendants with the Reichsregierung, under Mr. Justice Jackson's point five. The acts which I have mentioned and which are set out in paragraph four of my Appendix A and the other paragraphs are of such a character that no one in a ministerial capacity could fail to have constructive knowledge of their nature and intent. I now pass to the Leadership Corps of the Nazi Party. Mr. Justice Jackson has indicated that the conspirators required wide instruments of support. Hitler boasted of the complete domination of the Reich and of its institutions and of its organizations, internal and external, by the National Socialist Party. In the Nazi Party, based on the Fuehrer principle, its policies and operations were determined not by the membership as a whole but by the "Corps of Bearers of Sovereignty" and their staff. These leaders were all political deputies obliged to support and carry out the doctrines of the Party. At every level regular and frequent conferences were held to discuss questions of policy and working measures. The leaders held the Party together, but they also kept the entire populace firmly in the grip of the conspirators through the control of the descending hierarchy of leaders. The prosecution submit that all these leaders are within the organization which they claim to be criminal, and as Mr. Justice Jackson pointed out, the staffs of the Reichsleiter, Gauleiter, and Kreisleiter, which are set out in the volumes of the National Socialist Organization Yearbook as being in these positions. The Tribunal will note that we have omitted the staffs of the more junior Hoheitstrager, as Mr. Justice Jackson has pointed out. On that the prosecution again says that there is no doubt that points one and two of Mr. Justice Jackson's criteria are complied with, and they indicate in paragraphs one, two, three, and four of Section B of my Appendix A the elements of criminality; they indicate in my Appendix B the defendants who are involved; and in a later portion of Appendix B they submit that from the position of these defendants as members of the Leadership Corps and in the government and the Nazi Party, and further, from the close inter-connection between the government of the Reich and the Party, it is clear that the Leadership Corps is a criminal organization connected with all the crimes charged against all the defendants in the Indictment, including those who were in the Leadership Corps, and elaborated before the Tribunal in the individual presentations. The Nazi Party is the core of the conspiracy and criminality alleged, and the defendants are the core of the Nazi Party. Again, the prosecution say that no one living in Germany and taking part in the management, which in this case means literally the ordering of the Nazi Party, could fail to have constructive knowledge of the intentions of its leaders and the methods of carrying these out. This inner circle is in a very different position from even the best-informed opinion outside Germany. I now pass to the SS, including the SD. The prosecution respectfully reminds the Tribunal of the statements regarding the composition of the SS and its history, set out shortly in Appendix B of the Indictment, on Page 36 of the English text. The prosecution stands by these statements, which it submits are clear. I do not. intend to read them at the present moment. The Tribunal has heard the evidence in the case regarding the SS (Pages 127 - 181, Part 3) and the case regarding concentration camps (Pages 360 - 378, Part 2) and also the evidence as to the defendant Kaltenbrunner, of which the reference is given in the addendum. They have also heard in the cases of the French and Soviet delegations additional mountains of evidence with regard to the SS. It is submitted [Page 55] that there is no difficulty on the first three of Mr. Justice Jackson's points, and that the criminality of the SS has been proved several times over. On the fourth point I venture to submit the submission in paragraph 4 of Section C of my Appendix A, that the crimes of the SS were committed, firstly, on such a vast scale, and secondly, over such a vast area that the criminal aims and methods of the SS, which have staggered humanity since this trial opened, must have been known to its members. It was difficult to drive from one city of Germany to another without passing near to a concentration camp, and every concentration camp had its SS crimes. In my Appendix B the Tribunal will find the members of the SS who are defendants set out, and in the second part, a summary of the crimes of the defendant Kaltenbrunner. The prosecution gives to him a particularly sinister significance, while relying also on the crimes of the other defendants who were members. DR. PANNENBECKER (Counsel for defendant Frick): May I point out that in the appendix the defendant Frick has apparently been included by mistake; among the offices held by the defendant Frick this is not listed as one of them. THE PRESIDENT: What do you mean? Do you mean not a member of the SS? DR. PANNENBECKER: The appendix says that Frick was a member of the SS. This is not the case and he has also made a statement to this effect in his affidavit. DR. SEIDL (counsel for defendant Frank): In the appendix just read out by the prosecutor the defendant Frank too is included as a member of the SS. Already earlier in the trial the American prosecutor submitted Document 2979-PS as Exhibit USA 7. This document shows that at no time was Frank a member of the SS or, as is asserted in the Indictment, an SS General. Furthermore, I should like to point out to the Tribunal that several months ago, when the Indictment was lodged against the SS as a criminal organization, the name of the defendant Doctor Frank was not mentioned. May I therefore take it that in the drawing up of this appendix a mistake has been made? DR. THOMA (counsel for defendant Rosenberg): I should like to make the same statement as that made by my colleague Doctor Seidl on behalf of the defendant Rosenberg. In Appendix A which lists the indicted organisations Rosenberg is shown as a member of the SA. He was never a member of the SA, and he has already made a statement to this effect in the course of an interrogation. SIR DAVID MAXWELL FYFE: The defendants will have the opportunity of disproving these allegations, which are all contained in the Indictment; but in view of what has been said, I shall personally check the matter myself. Then I proceed to deal with the Gestapo. Again the Tribunal will find the construction and history of the Gestapo set out in Appendix B of the Indictment, and the criminality alleged is set out in paragraphs 1, 2 and 3 of Section D of my appendix. The second addendum, the Tribunal may care to note, gives the most detailed references to each of these alleged acts of criminality. The prosecution submits that from these points which are mentioned it is clear that the first four of Mr. Justice Jackson's points are complied with. The provisions of Articles 7 and 8 of the Charter, in the submission of the prosecution, make it impossible for the defence to rely on the official background of the Gestapo, and therefore, as I say, we submit that this clearly comes within the first four of Mr. Justice Jackson's points. If the Tribunal will refer to my Appendix B they will see that the defendants Goering, Frick and Kaltenbrunner are alleged to be members, and in the later part of that appendix we allege, as is the fact, that the crimes of these defendants were committed in their capacities as responsible chiefs of this organization. Then we come to the SA. I again refer to paragraphs 1 and 2 of Section E of my Appendix A, and I ask the Tribunal to note that apart from the correct [Page 56] statement of its phases and periods of activity, each of the elements of criminality contained references to the transcript, where these matters are proved. I remind the Tribunal of Mr. Justice Jackson's statement, which shows that the prosecution have omitted all connected bodies, even including those who had only been members of the reserve, about which there can be any argument, even a sentimental argument, as to their full connection. It might be convenient if I reminded the Tribunal of these sections. THE PRESIDENT: We will adjourn now. (A recess was taken until 1400 hours.) SIR DAVID MAXWELL FYFE: If the Tribunal please, before the Tribunal adjourned I was about to mention again the groups on the fringe of the SA, which the prosecution did not seek to be included in the organizations. First, wearers of the SA Sports Badge. The Tribunal may remember that Colonel Storey explained that they were not strictly members. He wanted to have that point made quite clear. Secondly, SA Wehrmannschaften, who were internal defence or home guard units controlled by the SA, but not members of the SA. Thirdly, SA members who were never in any part of the SA other than the reserve. Fourthly, the NSDKV, the National Socialist League for Disabled War Veterans, who were apparently incorporated in the SA, but from the names that have been given, and the membership, we do not ask for their inclusion. In Appendix B the Tribunal will find the eight defendants alleged to be connected with the SA, and it is alleged by the prosecution that the connection of the SA with the conspiracy was so intimate that all the acts of the defendant Goering would justify the declaration asked for. I now pass to the sixth and last group or organization, the General Staff and High Command of the German Armed Forces. As in this case the prosecution has drawn an arbitrary line, I may perhaps be allowed to recall briefly its constitution. If the Tribunal will be good enough to look at Appendix B of the Indictment, under this heading, Page 37 of the English text, they will see that the first nine positions enumerated are special command or chief of staff positions. There were 22 holders of these positions between February 1938, and May 1945, of whom 18 are living. The tenth position, of Oberbefehlshaber, includes 110 individual officers who held it. The whole group varied from a membership of 20 at the beginning of the war to about 50 in 1944 or 1945, that is, at any one time.
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