Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-71.05 Last-Modified: 1999/11/22 If in England and America - as an exception - associations as such can be punished, that can be done only on account of certain groups of offences, and only to the effect that either the dissolution of the association may be pronounced or fines imposed. Naturally, in such proceedings, it is a necessary condition for the prosecution and the defence, that the association as such be represented during the proceedings by its functionaries and representatives and be able to defend itself; whereas in this trial the groups and organizations as such are summoned before the Tribunal, although they do not exist any longer and although their functionaries are absent. It has never been the case in any country that groups and organizations are declared guilty or criminal, and that, on the basis of this declaration of the Court, all members of the groups or organizations can be or must be indicted and punished because of their mere membership. This is the completely novel and odd feature which stands in contrast to the existing law of any country. [Page 92] I believe it is permissible to say that neither England nor America would ever be willing to pass such a law for their own population. If all this proves that the declaration of criminality demanded must automatically result in grave and completely untenable consequences, then the demand of the prosecution should be denied in the name of justice. The Charter, which in no way obliges the Tribunal to make such a declaration, would also not be violated thereby, in this way an injustice would be avoided, which could only injure the integrity of the judgement of the Tribunal in the eyes of our contemporaries and of posterity. My arguments lead to the following conclusion: The Tribunal should, because of the legal arguments presented, as a matter of principle, refuse to declare any group or organization criminal; it is within the Tribunal's power to do so. If this is not done, the concept of the criminal organization must be so defined that the innocent members are protected from serious consequences. This can be done only by means of a definition, as suggested yesterday by my colleague Kubuschok. Accordingly, those subjects of evidence proposed by him should also be admitted if they are not a priori irrelevant because of the fact that, for legal reasons, the prosecution's demand of a verdict against the groups and organizations cannot be granted. It is necessary that the following additional evidence be admitted for the group of the General Staff and the OKW, which I represent: (1) The group included under the designation "General Staff and OKW" is not such a group and is not an organization. My explanation of this subject of proof is as follows:- (a) Mr. Justice Jackson is of the opinion that the concept of "group" is more comprehensive than that of "organization," that it does not have to be defined, but can be understood by common sense. To this I must object that those who occupied the highest and the higher command posts represent the heads of a military hierarchy, as it is to be found in every army in the world. There was no relationship whatsoever evident among the members of this group. Nor can such relations be assumed merely because of the official connections between the various offices or because of the channels which actually existed. Moreover, since the circle of people whom the prosecution wishes to include in this group is admittedly composed in a completely arbitrary way, simply on the basis of official positions occupied within a period of eight years, there is no evident tie which could justify the assumption of the existence of a group. To form a group it is absolutely necessary to have some connecting element in addition to the purely official contact between offices. (b)Apart from the Chiefs of the General Staff, the Army and the Air Force, none of the individual persons in the group belonged to the General Staff. The German General Staff of the Army and the Air Force - the Navy had no General Staff - was headed by the Chief of the General Staff and consisted of the General Staff officers who acted as operational assistants to the higher military leaders. For these reasons the designation or name given by the prosecution to this fictitious group under indictment, is false and misleading as well. (2) The following subject of evidence, in addition to those advanced by my colleague Kubuschok, should be admitted for, the group of the General Staff and OKW: The holders of the offices forming the group did not join a group voluntarily nor did they remain in it voluntarily. The admission of this subject of evidence is necessary for the following reasons: Mr. Justice Jackson stated yesterday that joining a group or the membership in it must be voluntary. This condition is not present in the case of the group which I represent. The vast majority of the indicted higher military leaders had come from the Imperial Army and Navy. All of them had served in the Reichswehr long before 1933. They did not join any group but were officers of the Armed [Page 93] Forces and received their appointments, which they were not at liberty to choose, only on the basis of their military achievements. They also were not at liberty to relinquish these appointments without violating their oath of military obedience. (3) All evidence is to be admitted which refers to the charge against the group of the General Staff and the OKW as contained in the summary of arguments. Evidence on these points could be presented in the following way: 1. A number of people concerned should make sworn affidavits from the contents of which conclusions could be drawn regarding the typical attitude of a certain number of those involved. 2. Some typical representatives of the group ought to testify before this Court about the subjects of evidence submitted. 3. Every other sort of evidence having some probative value should be admitted to the extent necessary. We request that this evidence should be admitted to a full extent for the time being, without prejudice to a subsequent decision on its weight, just as Mr. Justice Jackson suggested the same thing on 14th December, 1945, with regard to the evidence offered by the prosecution, for at present a binding decision on the relevancy of the evidence offered cannot be reached. Whether this evidence is necessary at all and whether or not and to what extent it is relevant, depends on the following:- (a) Whether the Tribunal, following the arguments of justice and fairness as submitted, and by authority of the power given it, declines to declare these groups and organizations criminal; (b) or, if this is not done, in what way it defines the concept of criminal groups and organizations. These two points cannot be definitely decided at present, since there is still a great deal to be said about these extremely difficult and significant and completely novel problems, as well as about the impressive address delivered by Mr. Justice Jackson. One of my colleagues has undertaken to work out a comprehensive memorandum on all these problems and questions, which will be ready in about two or three weeks. I request that additional argument pertaining thereto be reserved for me and my colleagues at that time. One last point: the Tribunal ought also to reach a ruling as to what is to be done about the last word for the organizations. THE PRESIDENT: Mr. Justice Jackson, the Tribunal would be glad to hear you in reply. MR. JUSTICE JACKSON: I think there is not much that I care to say in reply, but there are one or two points which I would like to cover. It has been suggested that there be a separation of the trial of the issues as to the organizations from the trial now pending. I think that is impossible under the Charter. I think the trial must proceed as a unit. Of course, it is possible to take up at separate times different parts of the trial, but the jurisdiction conferred by Article 9 for the trial of organizations is limited. It is at the trial of any individual member, of any group, etc., that this decision must be reached and it must be in connection with any act of which the individual may be convicted. So I think that a separation in anything more than mere days or weeks of our time is impossible. I find some difficulty in understanding the argument which has been advanced by several of the representatives of the organizations, that there would be some great injustice in dishonouring the members of these organizations or branding the members of these organizations with the declaration of criminality. I should have thought that if they were not already dishonoured by the evidence that has been produced here, dishonour would be difficult to achieve by mere words of the declaration. It is not we who are dishonouring the members of those organizations. It is the evidence in this case, originating largely with these defendants, [Page 94] that may well bring dishonour to the members of these organizations. But the very purpose of this organizational investigation is to determine that part of German society which did actively participate in the promulgation of these offences, and that those elements may be condemned; and, of course, if it carries some discredit with it, I think we must say that the discredit was not originated by any of our countries; the dishonour originated mainly with those in this dock, together with those whom the fortunes of war have removed from our reach. There seems to be some misunderstanding as to just what we mean, or, at least, we do not agree as to what is to be meant by treating these organizations as generally voluntary. The test which has been advanced by the counsel for the organizations would, it seems to me, completely nullify any practicable procedure. Now, let us contrast the Wehrmacht and the SS, to get at what I mean by regarding an organization as generally voluntary. The Wehrmacht was generally a conscript organization, but it may have had a good many volunteers in it. I do not think we would be justified, because there were volunteers; in calling the Wehrmacht a voluntary organization. The SS, on the other hand, was generally a voluntary organization, but it did have some conscripts, and I do not think it would be any more just to carry the SS into the class of conscript organizations, because of a few members, than it would to classify the Wehrmacht as voluntary because of a few members. In other words, in neither case would we be justified in allowing, as we might say, the "tail to wag the dog." It is a question of the general character of the overall organization that decides what these organizations are. Now, of course, if the Tribunal saw fit to say that its declaration was not intended to apply to any groups, sections, or individuals who were conscripts, that is one thing. I have no quarrel with that. From the very beginning I have insisted that, of course, we were not trying to reach conscripts. But, if you sit here week after week determining who is a conscript, and just where that leads, that I think would be quite apart from what we ought to do here. A great deal of argument is addressed to the fact that proof is lacking, or that there should be stronger proof, that these organizations' real criminality was known to the members; and the inference seems to be that we cannot hold members who did not know of this criminal programme on the part of these organizations. I think this leads to a question, perhaps, of the sufficiency of proof rather than of principle, but it seems to me again that we have the common-sense division. If someone organized a literary society for the study of German literature and accumulated some funds and had a home, a house, and some of the defendants became its officers and secretly diverted its funds to a criminal purpose, while all the time to the public it was presenting only the appearance of being a literary society, it might very well be that a member should not be held guilty unless we proved actual knowledge. Or, if a labour union, ostensibly for the purpose of improving the welfare of its members, has its funds or properties or the prestige of its name diverted by those who happened to gain control of it, to criminal purposes, then you have a situation where the members might not be chargeable with knowledge. But when I speak of knowledge sufficient to charge members, as I did, I do not mean the state of mind of each individual member. That would be an absurd test in any court of law. In the first place, it is never a satisfactory thing to explore the state of mind of an individual and, in the second place, it is impossible to explore the state of mind of a million individuals. So we might as well drop this from consideration, if that were to be the test. But let us look at this overall programme. How did these few men who were the heads of this Nazi regime, kill five million Jews, as they boast they did? Now, they did not do it with their hands, and it took disciplined, organized, systematic manpower to do it. That manpower was not casually assembled. It was organized, directed and used. Can the killing of five million Jews in Europe be a secret? Were not the concentration camps known in every one of our countries? Was it not a byword in [Page 95] every land in the world-the German concentration camps-and yet we have to hear that the German people themselves had no knowledge about it! Our public officials were protesting diplomatically against the slaughter of Jews, and in every other way, and yet we are told this was a secret in Germany. The name of the Gestapo was known throughout the world, and there is not a man among counsel who would not have turned white if, someone rapped at his door at night time and said he was representing the Gestapo. The name of that organization was known-unless we are to assume that it was singularly secret in Germany but known to the rest of the world. That sort of thing bears on this question of what men ought to know, who joined these organizations. There was no declared and ostensible purpose of the SS, SA, and several of these organizations, except to carry into effect the Nazi programme. They meant to make themselves masters of the streets. The story is all in the evidence, and I will not go on to repeat it. The programme was an open, notorious programme and these were the strong-arm organizations. So it seems to me that we get down to the situation where, as Chief Justice Taft once said to the Supreme Court of the United States on a somewhat similar question: "We as judges are not obliged to close our eyes to things that all other men can see." And this was notorious and open. It is a little hard, if your Honours please, for an American patiently to listen to the arguments made here again and again, that there is some plan here to punish with death penalties, or extremely severe penalties, people who innocently got caught in this web of organizations. If there were the slightest purpose to go through Germany dealing death, we would not have bothered to set up this Tribunal and stand here openly before the world with our evidence. We were not out of ammunition when the surrender took place, and the physical power to execute anyone was present. These powers have voluntarily, in their hour of victory, submitted to the judgement of this Tribunal the question of the criminality of these organizations. And it seems to me a little trying to the patience of representatives of those powers, to be told that behind this is some purpose to wreak vengeance on innocent people. I think it is difficult for those who have survived this Nazi regime to understand how reluctant we are to kill any human being. It is a commentary on the state of mind that survived this Nazi regime, rather than upon us. Control Council Act No. 10 - I do not know whether your Honours have copies of that - Control Council Act No. 10 does make membership in the categories which may be convicted, a crime, and I think it ought to. It ought to be sufficient to bring before a Tribunal inquiring into the detail of each individual, any individual as a member, and that is all that we have here in a declaration which, in substance, enables you to put the individual on trial. It is true that the punishment may include a death penalty, and so long as the death penalty is imposed by any society for anything, the penalty of death ought to follow in some of these cases; the SS men who were responsible for the destruction of the Warsaw Ghetto, for example, or SS men who are shown to have been responsible for the top planning, even though they did not actually participate. But I call your attention to the fact that in Provision No. 3 of Act No. 10 the slightest penalties are also provided. The restitution of property wrongfully acquired is one of the penalties that may be imposed. The deprivation of some or all civil rights is another. During this period of reconstruction of German society those minor penalties may very well be imposed upon people who entered into these organized plans. If not, you have the situation that the people who organized themselves to force this Nazi programme first on the German people and then on the world, are treated exactly the same as the German who was the victim of it. [Page 96] Now, is it not our duty as occupying powers of a prostrate country to draw some distinction between those who organized to bring on this catastrophe, and those who were passive and helpless in the face of overwhelming power? Counsel for one of the defendants has already shown that, in administering the affairs, an SA man has been made a Councillor in one of the districts. There is no purpose, because a man happened to get into the SA, to take his life or to take his property or to condemn him to hard labour for life. There is a purpose to have the basis for bringing these people in for what the military people call a it "screening" and to find out what kind of people they are and what they have been up to.
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