The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/22

One way of achieving this would be an exact interrogation of
the individual members at the places where - this would
apply to most of the organizations - at present large
numbers of them are being kept in internment in the various
camps. We believe that the best way to investigate
individual cases, and the one

                                                   [Page 65]

most suitable to the Court, would be to assign this work to
one or more suitable spokesman in each camp, that is to say,
of course, under the supervision and with the assistance of
the defence counsel or their assistants, and then bring
these spokesmen before the Court as witnesses so that they
may give a picture of the activity and attitude of the
individual members.

We believe that the way to get as clearly and
conscientiously presented a picture as possible would be for
these spokesmen to get from the inmates of the camps
affidavits about the main points of indictment which have
been specified by the prosecution.

The spokesmen could then, as witnesses, say under oath what
percentage, on the basis of these affidavits of the
individual inmates of the camps, had taken part in the
criminal actions mentioned in the Indictment or had known
anything about them. Certainly there are various
difficulties connected with this which will also have to be

In order to get a true picture, one will have to relieve the
individual inmates of the suspicion that, through a truthful
testimony submitted to the prosecution, they might be
offering material which could be used against them

We consider it, therefore, necessary that in so far as these
affidavits are to be presented to the Court as documentary
evidence, the prosecution should make a statement that this
material will not be used for the purpose of criminal
proceedings against persons. This statement would naturally
not involve any immunity for individual members; but the
individual inmate of the camp would be assured that the
affidavit made by him under oath did not establish his guilt
as far as future criminal proceedings are concerned.

If the prosecution does not want to accept this proposal,
there would still the possibility, without submitting these
documents, of using the testimony of the spokesmen, who
could give information as to the percentage of the people
who took or did not take part in criminal activities or

THE PRESIDENT: Since you have not finished, I think we had
better adjourn for ten minutes.

(A recess was taken.)

DR. KUBUSCHOK: Before the recess I referred to a suggestion
for getting information about the actions and the attitude
of the members by means of typical facts.

This taking of evidence would have, for practical purposes,
to extend to a sufficient number of camps in all the zones
of occupation. From the results of this taking of evidence a
conclusion could then be drawn, on the basis of what is
found to be typical, as to the criminal activity and
attitude of the individual member of the organization, and
at the same time, a conclusion as to whether or not the
organization had a criminal nature.

If the prosecution is in agreement with the defence so far,
I believe that I have perhaps found in this way a means of
collecting the relevant evidence, including all positive and
negative elements.

To the extent that the hearing of inmates of camps does not
suffice, which might be true of the one organization or the
other, the hearing of members of the organization who are
not in custody might have to be considered. Here, too, a
proper way could probably be found which would likewise make
possible and easier the execution of the tasks of the

DR. SERVATIUS (counsel for the Leadership Corps): I should
like to take a stand too on the questions now being
discussed before the Court. I am not at present in a
position to take a stand on the profound and well-presented
statements which Mr. Justice Jackson has made here. I should
like to make a brief, but not less carefully thought-out
answer; but the Court will understand that I and a number of
my colleagues desire to put our case, after studying the
material and the legal aspect. Perhaps the Tribunal will
give us the opportunity to do this very shortly.

                                                   [Page 66]

I should like now to take up these questions along more
technical lines, in order to fulfil my duty, and on behalf
of the defence to take a clear stand on these particular

In the first question, it was asked what evidence was to be
admitted and what particular evidence should be presented
here in the main trial before this Tribunal.

The answer is this, that all evidence is relevant which is
of significance for the determination of criminality. If one
examines the concept "criminal" it is seen that there is no
factual situation as defined by criminal law, nor can there
be any, for it is not a question of determining the factual
elements but rather of a judgement as to whether an act is
criminal in the same way as judgement as to whether
something is good or bad. Consequently, the Charter does not
oblige the Tribunal to pass sentence and declare such-and-
such to be criminal, but rather it states that the Tribunal
may pass such a sentence, but not that it must reach such a

It can thus be seen that the Tribunal is here confronted
with a task which is basically different from the activity
of a judge. A judge is obliged, when certain facts
determined by law are put before him, to pass sentence, but
this Tribunal is to determine the culpability of a set of
facts, on the basis of which the judge will later pass

Such a task is, however, that of a legislator and not of a
judge. The Tribunal here determines what is deserving of
punishment and thereby creates a law. In this way the
Tribunal also creates that basis for the procedure which Mr.
Justice Jackson mentioned in a former address of his - the
basis for procedure in the subsequent individual trials.

It is this basis for procedure which the legislator gives to
the judge who is to deliver judgement. In such a case the
burden of proof is likewise reversed, as Mr. Justice Jackson
also has constantly mentioned. It is as if a thief were
before the Court - his objection that theft is not
punishable, that "possession is theft," would be questioned.

That the activity of this Tribunal is legislative can also
be seen from the fact that, without setting up the Tribunal,
the signatory powers could just as successfully have
determined that all members of organizations could be
brought before a court because of their membership.

Law No. 10 of the Allied Control Council, that has often
been mentioned today, corroborates this interpretation,
since it constitutes the law for carrying out the skeleton
law expected of this Tribunal. The examples of the criminal
nature of the organizations that have been given here in Mr.
Justice Jackson's address today, show again and again that
it is a question of laws and not of judgements.

It is also characteristic of the legislative function, that
in all discussions considerations of expediency take first
place, and Mr. Justice Jackson asked in a previous statement
that the verdict should provide the means to proceed against
the members of the organizations.

It is seen that the Court must deal with de lege ferenda
considerations on an ethical basis. But it must be proved
that the members of the organizations are punishable, and
"punishable" is equivalent to "criminal." In order to
determine the factual elements, the judgement brings
evidence. As legislator, the Tribunal must collect the
material for legislation. The judge can, on the basis of the
legally proscribed criteria, easily determine what is
relevant as proof of these criteria and what he therefore
must admit as proof.

It is characteristic that such a determination here in this
matter creates difficulties. The legislator proceeds
differently from the judge. He studies the facts to see if
they deserve punishment, and for him all those facts are
relevant which are of significance for the contents of his

In this matter he must have an overall picture of the entire
problem and must take into consideration both the good and
bad aspect of the matter to be judged.

                                                   [Page 67]

The basic principle of justice is that only the guilty be
punished. If the legislator wishes to achieve this, he must
examine whether only guilty people will be affected by his
laws. He must, therefore, also investigate the objections
which any person affected by his law might make. The
innocent person is protected in this way, that in the
individual case the guilt of the individual must be proved
unless the legislator actually has in mind responsibility
without guilt.

Every killing of a human being is punishable, but whether
the person is guilty has to be proved. He can avail himself
of the so-called objection that the death was not
intentional. If the legislator does not want to permit such
an objection, then he must himself examine the material that
leads to such an extraordinary measure. The extent of the
material to be examined, that is, the taking of evidence,
depends on the contents of the law that is to be passed.
Inasmuch as in the subsequent individual trials all
objections remain open, the Tribunal does not have to
concern itself with them. But the Tribunal must consider to
what extent the innocent persons in the individual trial
will have legal guarantees which protect them from an unjust
punishment. It is absolutely necessary for the Tribunal also
to examine every submission, which the individual member
cannot bring in the subsequent proceedings.

In anticipation of these powers of the Tribunal, it has
already been determined by Article No. 10 mentioned above,
that every member can be punished. Thereby these
punishments, of which we have heard in the previous
speeches, have already been determined. It thus appears as
if the Tribunal could only pass a judgement en bloc without
having any right to modify it, and consequently without
possessing any influence on the legal effect of its verdict.
But such a concept is in contradiction to the basic idea of
the Yalta conference, which was that of transferring to the
Tribunal the legislative powers of the signatories, with the
express purpose of vindicating this principle of justice,
namely, that only the guilty be punished, on the basis of
examination of the facts through the hearing of the members
in question.

Consequently the Tribunal must have a right to determine in
individual cases the basic conditions for the punishment and
to determine the objections which should remain open to the
individual; and the Tribunal must also be able to limit the
effect of its judgement by regulation of the punishments.

I believe that Mr. Justice Jackson expressed an opinion
today which does not contradict this.

According to the sense of the Charter, the Tribunal is not
permitted to transfer its responsibility to the individual
Courts by simply leaving for all practical purposes the
decision to these Courts, which because of their composition
may have quite different legal views.

The members of the organizations have been granted that very
right to be heard here before the International Military
Tribunal, particularly because of the significance of the
judgement which in all cases contains a grave moral
condemnation. To what extent then should the Tribunal
concern itself with the material for this taking of
evidence? I believe that the Tribunal, in order to determine
what is deserving of punishment, must investigate that which
is typical, while the purely individual can be left to the
subsequent proceedings.

But this separation of the typical from the individual is
not easy, for the submission of the members often has a
double significance. Thus the submission of a member that he
did not know about the criminal nature of the organization
could mean, on the one hand, that such purpose never existed
or, on the other hand, that the member had no knowledge of
that purpose which was really there.

The first is an objection which concerns the organization,
the second a purely personal objection.

On the basis of these arguments I should like to answer the
Tribunal's first question as follows:

The factual elements of criminality as defined by criminal
law cannot be found

                                                   [Page 68]

here; the determination of criminality is the determination
of punishability as a legislative task of the Tribunal.
Examination of evidence in the procedural sense is in
reality the examination of the legislative material
including the objections of the members of the groups and
organizations. To what extent the Tribunal itself must
examine the material depends on the scope and the effect
which it intends to give, and which it is able to give, to
the verdict. Only that which is not typical and which is not
of importance as far as de lege ferenda considerations are
concerned, only that can be left to the individual trials.

To questions two and three. Under points two and three the
Tribunal puts a question regarding the limiting of the
groups of members and the limiting of the length of time of
the criminality. Both questions touch the same problem,
namely, whether such a limitation is a motion on the part of
the prosecution or whether the Tribunal itself can limit the
contents of its verdict.

I believe Mr. Justice Jackson today expressed the opinion
that the Tribunal has the power to make such a limitation.
But as regards the Political Leadership, the prosecution
reserves to itself the right, in the case of a limitation of
the groups of members, as proposed by it later, to introduce
other trials against these members who are now being
excluded or to take other measures.

However, such a right is not given to the prosecution in the
Charter. It also stands in contradiction to the natural
powers of the Tribunal to include in its decision an
acquittal - a power which cannot be eliminated by
reservation - made by the prosecution. The evidence to be
examined also cannot be limited through such a limitation as
proposed, for the judgement delivered on the indicted
organizations must include these organizations as a whole.
It is not permissible to seize upon merely the criminal
elements of groups who represent a period which was not
typical, and then, despite this, declare the organization

That which is to be considered a group or an organization
does not depend on the discretion of the. prosecution, as is
also seen in Article 9, Paragraph 1 of the Charter,
according to which the criminal character must stand in some
relationship to the acts of one of the main defendants.

This can only be understood to mean that the organization,
in its membership and in respect to time, must be influenced
by the actions of one of the major defendants. However, this
is not for the prosecution but for the Tribunal to decide.

Accordingly, I should like to answer questions two and three
as follows:

Question two: A limiting of the incriminating period does
not depend on a motion of the prosecution. The Tribunal
itself can and must limit the length of time, if the
organizations or groups were not deserving of punishment
throughout the whole period of their existence. If the
actions of the main defendant, as a member of the
organization, were not incriminating during the whole period
of the existence of the organization, then such a limitation
must follow.

Question three: For the limiting of the groups of members
the same applies as for the limiting of the period of time.

The Tribunal can, on its own authority, limit the effect
that its verdict will have in the case of all groups and
organizations. It must undertake this limitation if the
actions of the main defendant in his capacity as a member of
the organization are not such as to incriminate certain
groups of members. A limitation of the indictment or of the
effect of the verdict does not limit the material evidence
which is the basis of the judgement.

These were the remarks I wanted to make in answer to the
questions of the Tribunal. I should like now merely to take
a stand on a question that has also been brought up today;
namely, the application for a legal hearing; if the Tribunal
permits me to discuss this question. According to Article 10
of the Charter, every member of an organization can be
brought to trial, if the organization has been declared
criminal. The decision is left to the Tribunal. The
essential task of the Tribunal is the hearing of the
members. Without this hearing a sentence is

                                                   [Page 69]

not possible. That is the basic condition, without which the
proceedings cannot be carried out. So far the defence has
had only about fifty thousand applications from the millions
of members. In order that the Tribunal should not draw the
false conclusion that the overwhelming majority of those
affected admit their guilt by remaining silent, I must
emphasize that such guilt will be most passionately denied
by all those affected.

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