The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/24

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THE PRESIDENT: General Rudenko.

GENERAL RUDENKO: Your Honours, permit me to make a few
supplementary remarks concerning the criminal organizations,
a problem to which the Tribunal has devoted much attention
in the last few days.

I consider it essential, in the first instance, to clarify
completely the legal aspect of this problem.

There is, in the Charter of the Tribunal, a marked absence
of any statement to the effect that the recognition of an
organization as being of a criminal nature would
automatically entail the bringing to trial and, further, the
condemning of all the members of these organizations. On the
contrary, the Charter contains a definite indication of an
opposite nature.

Article10 of the Charter, repeatedly quoted at this trial,
states that the national courts have the right, though not
the obligation, to bring to trial members of organizations
declared as criminal. Consequently, the question of the
problem of the trial and the punishment of individual
members of criminal organizations lies exclusively within
the scope of the national tribunals.

The legal sovereignty of every country that has adopted the
Charter of the Tribunal is thus limited in one respect only
- the national courts cannot deny the criminal character of
an organization, once it has been declared to be criminal.
The Tribunal can impose no further limitation on the legal
sovereignty of the contracting parties.

Therefore, Mr. Justice Jackson has stated here - and with
reason - that the recognition of an organization as being of
a criminal nature, and therefore automatically entailing the
mass condemnation of all its members, is a mere figment of
the imagination. That, I would add, has not sprung from
legal grounds but from some entirely different source.

It appears to me that this legal problem is also based on a
definite misunderstanding. One of the counsel for the
defence, Dr. Servatius, was speaking here of the legislative
authority of the Tribunal. The authority of the
International Military Tribunal, organized by four States in
the interest of all freedom-loving peoples, is enormous,
but, of course, this Tribunal, as a legal organization, does
not and cannot possess any legislative authority.

When solving the problem of the criminal character of an
organization, the Tribunal is only exercising the right
entrusted to it by the Charter, i.e., to solve,
independently, the question of the criminality of the

Of course, the verdict of this Tribunal, when declared,
acquires the value of a law, but that is the value attached
to any of the verdicts of the Courts once it has been

Counsel for the defendant, Kubuschok, has stated here that
the decision of the Charter with regard to the criminal
organizations is a legal innovation. This, to a certain
extent, is true. The innovation consists in the Charter, and
in all its articles, of the International Military Tribunal
whose creation, per se is an innovation in the first
instance. But should the defence consider it possible to
deplore this fact, I would consider it opportune to remind
them of the causes of these legal innovations.

                                                  [Page 115]

The very evil deeds committed by the defendants and their
associates, deeds, hitherto unknown in the history of
mankind, have, of necessity, imposed new legislative
measures for protecting the peace, the liberty and the lives
of the nations against criminal attempts. Moreover, the
States which created this Tribunal, and all peace-loving
people, remain invariably faithful to the ideals of law and
to the principles of justice. Therefore, responsibility for
participation in criminal organizations will be established
only when personal guilt has been proved. In reality, the
national courts will decide the problems of individual

A few words now on the practical side of the problem. It has
been stated here that several detachments of the SS did not
follow any criminal objective. It is difficult, your
Honours, to find within the fascist machinery neutral
organizations which did not follow criminal objectives.
Thus, the defence counsel for the SS, Dr. Babel, mentioned
the existence of a research department for dog breeding
within the SS. It would appear that this was an organization
of general utility. It seems, however, that the scientific
"dog breeders" in this organization were engaged in training
hounds to attack human beings and to tear their appointed
victims to pieces. Can we isolate these "dog-breeders" from
the SS?

In Danzig another scientific research institute was engaged
in the preparation of soap from human fat. Perhaps we should
exonerate these "soap-boilers" as well from all criminal

At this point two practical suggestions have been put
forward by the defence counsel: the isolation, as a separate
activity, of the case of the criminal organizations and the
establishment, in the various camps, of a defence
organization having as its purpose the collection of
information and evidence. In practice, however, both
proposals would create insoluble difficulties for the
Tribunal in the execution of the immense task imposed upon
it by the Nations.

This task is precisely formulated in the Charter which
instructs the Tribunal to solve the problem of the
investigation of concrete facts concerning members of these
organizations. Therefore, an appeal to the Tribunal to
isolate and consider the case of the criminal organizations
as an independent activity, is tantamount to an appeal to
the Tribunal to infringe the articles of the Charter.

Article 9 of the Charter decides the problem of the criminal
organizations when investigating the case of any one
particular member, but it also has one other meaning for the
trial. It shows, as I have already mentioned, that the fact
on which the statements and the solution of the question of
the criminality of the organization are based is the
presence in the dock of the accused representatives from the
corresponding organizations. As is known, in the present
case, all the organizations which the prosecution suggests
should be considered as criminal, are represented in the

There is evidence in this case which amply suffices to admit
the criminality of these organizations. Therefore, the
calling of special witnesses, capable of giving evidence on
these organizations, can appear only as a supplementary
source of evidence. I am bringing these matters to a close,
your Honours, and in closing I cannot omit one argument of
the defence. It was stated here by the defence, that as a
result of the admission of the criminality of these
organizations millions, of Germans, members of these
organizations, would be brought to trial. Together with my
colleagues of the prosecution, I am not of this opinion, but
there is something more I would like to say.

By this reference to hypothetical millions, the defence is
attempting to hinder the progress of Justice. However,
before us the representatives of the nations who have borne
the burden and the suffering of the struggle against
Hitlerite aggression, before the conscience and
consciousness of all freedom-loving people, appear other
figures, other millions of victims irrevocably lost,
tortured to death in Treblinka, Auschwitz, Dachau,
Buchenwald, Maidanek and Kiev. It is our

                                                  [Page 116]

duty to spare no effort to crush the criminal system
directed by the fascist organizations against humanity.

We are deeply convinced that the Tribunal will unswervingly
follow the path towards a just and rapid verdict and that it
will, in full measure, chastise those whose crimes have
shattered the earth.

MR. BIDDLE: General Rudenko, may I ask you a few questions?
General Rudenko, you remember that Mr. Justice Jackson
suggested certain tests that we should use before we found
an organization criminal, whether the tasks and the purpose
of the organization were open and notorious, in order to
show that the members knew what they were doing.

Now, if we find that any organization is criminal we would
necessarily find, I presume, on that test, that its actions
were open and notorious. Now, if a member of that
organization found to be criminal was then tried by one of
the national courts, I suppose under that finding he would
not have any right to show that he did not know about it,
because we would have found that the knowledge was so open
and notorious that he must have known, so he could not raise
as a defence that he had no knowledge of the criminal acts,
could he?

GENERAL RUDENKO: That is quite true. But we are bearing in
mind the fact that the national courts investigating the
problem of the individual responsibility of individual
members of the organizations will, of course, proceed from
the principle of individual guilt since, naturally, we
cannot exclude the possibility that in the organization of
the SA, which fundamentally and in an overwhelming majority
was aware of its criminal purpose, there might yet be
individual members who might have been lured into the
organization either by deception or by some other means and
have been unaware of its criminal purpose.

MR. BIDDLE: But that would not be any defence to him, would
it? He could not say he had no knowledge, because we would
have already found that the knowledge was so open and
notorious that he must have known.

GENERAL RUDENKO: Why? I personally proceed from the
standpoint that if the national court investigates the case
of members who plead ignorance of the criminal purpose of
the organization to which they belonged, the national court
must examine these arguments submitted in their defence and
estimate them accordingly.

MR. BIDDLE: How could they consider that if we make a rule
that the activities of the organization are so notorious
that he must have known? How can he then say he did not

GENERAL RUDENKO: I still maintain the point of view, and I
still interpret and understand the Charter to mean, that the
judgement of the International Military Tribunal should
determine and decide the question of the criminal character
of the organizations, but where the question of individual
responsibility and guilt of every member of this
organization is concerned, the decision falls exclusively
within the competence of the national courts. It is
therefore extremely difficult to foresee all the possible
individual cases and the eventualities which might arise
when investigating activities of individual defendants.

Yesterday you submitted a question to Sir David Maxwell Fyfe
concerning a member of the SA who had joined the
organization in 1921 and left a year later. These, of
course, are special cases and I cannot state how numerous
they are; they are unavoidable, and when we come to the
question of the extent of his information, the reasons for
his entering and the reasons for his leaving this
organization, when we come to estimate the value of his
actions, it seems to me that it should be done by a national
court which will examine the findings of the defence and
appreciate them accordingly.

                                                  [Page 117]

MR. BIDDLE: Can you say now what defence he would have
before the national court except the defence that he was
never a member? Does he have any other defences so far as we
know? Does the Article No. 10 permit him any other defences?

GENERAL RUDENKO: It is difficult for me, at the present
moment, to say what arguments the members of these
organizations may put forward, for were I to speak it would
be on assumption. But I, for instance, consider, that the
argument produced (if produced) which might be considered
sufficient to exonerate this member of the organization
would be that he had been coerced into joining.

MR. BIDDLE: May I ask you two more questions.

You used the expression that any evidence given by the
defendants would be merely supplementary. That expression is
not known to our law, and I would be very interested in your
telling us what you meant by supplementary evidence. I do
not know what the term means.

GENERAL RUDENKO: I did not put it that way. (This is perhaps
an inaccuracy of translation). What I did say, speaking of
questions connected with further investigations of the
matter of the criminal organizations, was that this
investigation should be carried out together with the
investigation of the case of any one member of this
organization, inasmuch as representatives of those criminal
institutions are now in the dock. But I do say that this is
already conclusive material for the recognition, or the
denial of the criminal nature of this organization.

But the Tribunal can, of course, consider this evidence as
inadequate, or shall we say, the defence may consider that
further supplementary evidence may be needed. In this
connection, I consider that the calling of witnesses capable
of submitting special evidence on the problem of the
criminal or non-criminal character of these organizations
may be presented to the Tribunal as supplementary evidence.

MR. BIDDLE: One other question on the SA, which I asked Sir
David yesterday.

What do you consider was the function of the SA after the
Roehm Purge, or, to put it a little differently, what
criminal act do you believe the SA was engaged in?

GENERAL RUDENKO: I consider that the SA, after the Roehm
incident committed the same criminal acts as the other
organizations of Hitlerite Germany. I wish, in confirmation
of this evidence, to refer to facts like the seizure of the
Sudeten territory; as is well known, detachments of the SA
played an active part in this affair.

All the subsequent events which occurred in Germany in
connection with the Jews and, later, in the territories
seized by Germany (Czechoslovakia and others) these criminal
events took place with the connivance of this organization -
the SA.

MR. BIDDLE: Thank you.

THE PRESIDENT: Does the prosecutor for the French Republic
wish to say anything?


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