The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: imt/tgmwc/tgmwc-08/tgmwc-08-72.02

Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-72.02
Last-Modified: 1999/11/24

DR. DIX (counsel for the defendant Schacht) : I have, as counsel for the
defendant Schacht, an indirect interest in the question of
the criminality of the group Reich Cabinet (Reichsregierung)
because Schacht was a member of the Reich Cabinet. I want to
point out, however, at the very beginning, that I do not
want to make detailed statements now either of a legal
nature or in regard to the facts of the case. I shall do
that rather at the time of my
concluding speech.

  I ask the support of the Tribunal, is a clarification and
amplification of those answers, which Mr. Justice Jackson
and Sir David Maxwell Fyfe gave yesterday to your questions,
Mr. Biddle.

                                                  [Page 117]

I should like to point out that it is, of course, clear to
me that I have no right to ask any questions of the members
of the prosecution. Formally speaking, I could at the most
ask the Tribunal to supplement the questions which were put
yesterday by the Tribunal. I believe, however, that this
formal objection has no practical significance, because I am
convinced that Sir David, who will see the pertinence of my
request to have his answer amplified, will be prepared to
amplify the answer given to the question by Mr. Biddle
without discussing the theoretical question, whether he is
under any obligation to do so.

Sir David Maxwell Fyfe was asked yesterday whether he
considers the Reichsregierung, that is to say, the Reich
Cabinet as it was composed on 30th of January, 1933, in view
of the then relatively small number of National Socialist
cabinet members, criminal even at that time and if so,
whether he is of the opinion that this hypothetic criminal
character was at that
time discernible to other people.

Sir David answered this question of Mr. Biddle's in the
affirmative and
based his answer (1) on the contents of the Party programme
and (2) on the fact that already at that time the Leadership
Principle had been set forth in the programme.

I should like to ask if Sir David would supplement his
answers along the following lines. Does Sir David really
mean to say that the Leadership Principle as such, that is
to say, purely as an abstract theory, is not only to be
rejected politically or for other reasons, but is also to be
considered criminal? I want to make it understood that I am
speaking about the abstract principle, without considering
any factual developments in the ensuing period of time.

Concerning his second answer, that the Party programme
justifies him in declaring that even at that time the Reich
Cabinet is to be considered criminal and was recognizable as
such. This answer - not directly in response to Mr. Biddle's
first question put in the course of further questions
addressed to him by the Tribunal - he added to and
substantiated by declaring that the aim expressed in the
Party programme of eliminating the Treaty of Versailles and
the announcement therein of the desire for the annexation of
Austria were the criminal points in this programme.

May I ask Sir David to state, first, whether these two
points of the Party programme, that is to say, the
abrogation of the Treaty of Versailles and the "Anschluss,"
with the exception of the Leadership Principle, were the
only points of the Party programme which caused him to
consider that programme criminal, that is, to consider a
government criminal which knew that programme? Secondly, I
should like to ask whether he really wants to put forward
the opinion that an attempt to attain a revision or an
abrogation in a peaceful fashion, that is, by way of
negotiations, of a treaty found to be oppressive - very
oppressive, by a nation, can be considered criminal.

Furthermore, I should like to ask him, to state whether,
considering the great democratic principle of the right of
self-determination of nations and considering the history of
the annexation movement in Austria itself-and I remind him
of the plebiscite of 1919 when this Anschluss was demanded
by, one may safely say, a hundred per cent. of the Austrian
population - he, as a politician, would consider a political
party or a political programme criminal which aimed at
reaching this goal in a peaceful fashion. And here I should
like to stress again in order not to be misunderstood, that
the later development and everything which actually happened
and anything which might not have happened in accordance
with the Party programme is to be left out of consideration
and only the Party programme as such taken into
consideration. Upon that, of course, the sense of his answer
depended when he said, "Yes, the Party programme is the
of the criminal character."

Now, finally, to come to the end, it would be consistent
with the logical course of my explanations, to wait until
Sir David has decided on this question for an answer from
Sir David and also from Mr. Justice Jackson, who is not here

                                                  [Page 119]

THE PRESIDENT (interposing): Dr. Dix, the Tribunal will, of
course, consider anything that you have said in so far as it
refers to matters of principle, but they do not think that
this is the proper time for counsel for the defence to pose
questions to counsel for the prosecution. The matter has
already been fully dealt with, and the Tribunal does not
propose to ask any further questions of the prosecution
unless the prosecution wish to say anything in answer to
what you have to say.

DR. DIX: Your Lordship, that was what I took the liberty of
saying at the beginning. I realize that it is Sir David's
free will and decision as to whether he cares to comply with
my request to add to his answer to the questions posed by
Mr. Justice Jackson. That I have to leave to him.

I have only a short question, which is intended to prevent
our misunderstanding each other. It is always well not to be

I remember - but I may be mistaken, and that is why I wish
to ask Sir David what Mr. Justice Jackson declared as his
opinion - that he did not consider the Party programme, as
such, criminal. As I have said, this is what I remember. I
did not take any notes on it, because it did not strike me
particularly at that time, since I considered it self-
evident. Therefore I may be mistaken. But if my memory is
correct, I should like to ask Sir David to state whether
there is any uniform attitude on the part of the prosecution
toward this point.

THE PRESIDENT: Dr. Dix, the Tribunal asked the prosecution
to present their arguments in principle on the question of
these organizations, and they wished also to hear counsel
for the organizations in order that these matters should be
cleared up, with a view to any possible evidence which might
have to be given. They have heard counsel for all four
prosecutors. They have asked them questions which they
thought right to ask them in order to clear up any points.
They have heard counsel for all the organizations and they
have heard counsel for the prosecution in reply. They do not
propose to ask any further questions of the prosecution at
this stage. Of course counsel for the prosecution and
counsel for the defence will be fully heard at a later

DR. DIX: I have come to the end of my statement. I leave it
to the Court and Sir David as to whether he wants to answer
these questions, now.

DR. SEIDL (counsel for defendant Frank): Mr. President, I
should like to give a short explanation to the question as
to which of the indicted organizations the defendant Frank
belonged. Is that possible at this moment?

THE PRESIDENT: Dr. Seidl, the Tribunal does not think this
is an appropriate time for any of the counsel for individual
defendants to go into matters connected with the charges
against the organizations. They will, of course, be heard in
the course of their own defence, but this is not the
appropriate time. This is only a preliminary discussion for
the purpose of clarifying the issues which relate to the

DR. SEIDL: Yes, but I should like to use this opportunity to
clarify a mistake which occurred the day before yesterday.
The day before yesterday I protested against the statement
that the defendant Frank was a member of the SS and this
seems to have been translated incorrectly.

THE PRESIDENT: But Dr. Seidl, will it appear in the
shorthand notes? You have not seen the shorthand notes yet?

DR. SEIDL: I have not seen the transcript yet, but I believe
that by error, "SS" was translated as "SA." The defendant
Frank has never denied that he was an SA Obergruppenfuehrer.
What I wanted to point out is only that the statement in the
Indictment that he was an SS General is not correct and also
that the statement in Appendix B about the nature of the
criminal element is not pertinent, because it is said there
that he was an SS General. But I attach importance to the
fact, that the defendant Frank has never denied, that he was
an SA Obergruppenfuehrer.

                                                  [Page 120]

THE PRESIDENT: Very well, but you will have an opportunity
to develop the whole case of Frank when your turn comes.

DR. SEIDL: Yes, but the question is merely this, as to
whether the defendant Frank was a member of the SS or not.
As long as the prosecution does not present any definite
proof of the membership of the defendant Frank in the SS, I
have to contradict this statement. I do not believe that it
is the task of the defence to prove that the defendant Frank
was not a member of the SS. I am convinced that, on the
other hand, this is one of the tasks of the  prosecution.

THE PRESIDENT: Very well; I have heard what you said.

DR. SERVATIUS : Dr. Servatius, for the Leadership Corps ...

THE PRESIDENT: Dr. Servatius, the Tribunal is prepared to
hear counsel for the organizations very shortly in rebuttal,
but only very shortly, as otherwise we may go on

DR. SERVATIUS: I do not want to make a speech, but merely to
speak for about five minutes, in order to define my attitude
towards a few matters of evidence. First, I have two
questions to ask concerning the limitation of the
proceedings to certain groups of members. I should be
grateful if the prosecution could give a statement as to
whether the exception of certain parts of the organizations,
as has taken place, is a final one, or whether other
procedures and steps are being held in reserve. This was
stated originally in reference to the Leadership Corps.
Concerning the limitation of the proceedings to certain
groups of members in reference to the Leadership Corps, I do
not wish to make any further motion, in as far as that
limitation has already been effected. I should be glad,
however, if a decision could still be reached concerning the
women. The female technical aides who were employed in the
offices can not, in my opinion, be included in the staffs.
At any rate, they do not belong to the Leadership Corps,
although they worked with the staffs. These women themselves
are of this opinion, and also the officers in the camps
shared this opinion. Accordingly, not a single application
for leave to be heard has been made by any women in the
British zone.

I presume it is known that women as a matter of principle,
were kept away from politics in the National Socialist
State, and, therefore, they can hardly be connected with the
crimes stated in Article 6.

Now, I should like to speak about two points concerning
questions of evidence. As every profession creates the tools
which it needs, so the jurist creates concepts to solve his
problems. These concepts are not created for their own sake;
thus the concept of the criminal organization will serve to
call guilty persons to account who would otherwise possibly
evade this responsibility of theirs. In establishing the
Charter, the procedure was this, that one did away with the
traditional structure of the State in order to reach the
individual. But in order to be able to seize these
individuals, one brought them together again through the
concept of the guilt of conspiracy. In this way, however,
only a relatively small circle can be reached, since its
members would have to be bound to each other by means of an
agreement. In order to enlarge this circle by means of legal
technique, the concept of a criminal group or organization
was created. This organization is involved in the agreement
of conspiracy only at the very top, while the members
automatically, without their own knowledge, are included in
the conspiracy. Such a definition of the concept of a
criminal organization is justifiable only in so far as it is
useful in getting hold of the really guilty persons and only
the guilty ones.

In order to define the limits of this concept, I should like
to discuss two further points concerning the determination
of guilt and therefore necessarily relevant to the question
of admissibility of evidence. First, there is the question
of the members' lack of knowledge of this criminality: the
lack of knowledge resulting from secrecy, and then the
attitude of the members after they had recognized the
offences being committed. In my opinion, the examination of
guilt cannot be

                                                  [Page 121]

dismissed by pointing to the alleged knowledge of foreign
countries about the real conditions. In foreign countries a
propaganda was effective which exaggeratedly brought these
things to light. In Germany, all these facts remained
secret, since because of their very nature, they had to be
secret (for instance, what was going on in the extermination
camps) and because they had to be kept secret for political
reasons. Moreover, the things which have become known here
were so unimaginable that even in Germany one could not have
believed them, had they become known during the war. It must
be relevant to determine not whether a single individual
member had no knowledge, but that ninety-nine per cent. of
the individual members acted in good faith. In this case,
the organization is not criminal, but there could have been
a criminal in it. If this is determined, then the legal
construction of the criminal organization is superfluous and
thereby false. The legal concepts existing until now will
then be sufficient for bringing the guilty to trial.

The next point: The criminal nature or the criminal
character of which the Charter speaks, shows that that must
be something which concerns the entire organization and that
it must be a continuous state of affairs. Individual acts
which were rejected as wrong by the organization, or the
overwhelming majority of its members, cannot establish the
criminal character of the organization. The attitude of all
the members to the incriminating acts is therefore of
decisive importance and thus of evidentiary relevancy.

We do not need the concept of the criminal organization in
order to punish individual criminals whose acts were
rejected by the majority. Among such individual cases, in
organizations which comprise millions of members, there may
be cases in which smaller or even larger groups, or certain
local districts took part.

I believe that it is really a major task of the Tribunal to
define the nature of this guilt as applied to the entire
organization. I am of the opinion that the points I have
mentioned, the secrecy of these facts and the attitude of
the members after gaining knowledge, must form the basis for
the collecting of evidence.

MR. BIDDLE: I want to ask some questions.

Dr. Servatius, I would like to ask you - and I will ask
other counsel for the organizations - whether in general you
accept the definition of criminal organizations suggested by
Mr. Justice Jackson, which is found on Pages 19, and 20 of
his statement? You will remember that he made five general
tests. Now, in order to determine what evidence should be
taken, we must determine what is relevant. Now, the test of
what is relevant depends on a general definition of what is
common to all organizations, for that purpose. Now, do you,
or could you now, say whether in a general way you accept
those tests for the purpose of taking evidence?

DR SERVATIUS: I have not yet thought about that and have not
had a chance to discuss it with my colleagues. I should be
grateful if we could be given such an opportunity. Perhaps
this afternoon a representative of the defence counsel for
the organizations could report to the Court about this.

MR. BIDDLE: Let me ask you another question. What, in your
mind, are the tests that should be applied for the purpose
of taking evidence?

DR. SERVATIUS: I did not quite understand the question.

MR. BIDDLE: I said that Mr. justice Jackson had suggested a
definition from which the relevancy of certain evidence
could be established. Now, have you any suggestion to offer
for that same purpose?

DR. SERVATIUS: I should not like to commit myself without
having spoken to my colleagues. It is a question of great
importance which I should not like to deal with by myself.

                                                  [Page 122]

MR. BIDDLE: Yes, but it is the basis of this entire
argument, the very purpose of the argument was to develop

DR. KUBUSCHOK (counsel for the Reich Cabinet): In the course
of yesterday's debate, the problem was discussed as to
whether the task set before the Tribunal by the Charter can
be considered a legislative act. The question was brought up
as to whether, if we answer the preliminary question in the
affirmative, the Tribunal has the possibility of giving any
binding instructions to the National Court, which has to try
individuals according to Article No. 10. That concerns,
above all, the extent of the examination of the guilt of the
individual member and the limitation of the scope of
punishment for minor cases. I believe that, if we follow up
this deliberation we shall be led from a play upon words
into a labyrinth when it comes to the practical application.
Actually, the task given the Tribunal is not a legislative
act. It is not a procedural innovation if the National Court
in subsequent proceedings is bound by the previous decision
of this Tribunal. Such cases are quite plausible and legally
admissible. If elsewhere in criminal procedure a criminal
court is bound by a previous decision, say of an
administrative court, we consider these cases quite in order
and unobjectionable. Likewise, a criminal court could, for
instance, be bound in judging a case of embezzlement to wait
for the previous decision of the civil court, as to whether
the object embezzled was the property of somebody else.

Here too, nobody would think that the civil judge was
undertaking an act of legislation. That another court's
decision is binding on the criminal court and is the premise
for its sentence, does not in any way mean that the author
of the criminal code has not completed his legislative task
and that this has now to be done by the court which takes
the preceding decision. In my opinion, we, therefore, do not
have to consider this point any further, for Article 9,
Paragraph 1, of the Charter demands of the Tribunal a clear
and unequivocal decision of the question whether the
organization is criminal or not.

More cannot be read either into the Charter or into Article
No. 10. Yesterday, Sir David defined his attitude to the
five points which were submitted by me for consideration as
to relevancy of evidence. In regard to the two last points,
he raised the objection, that they were to be dealt with in
the subsequent trials envisaged by Article No. 10. It was a
question of the grounds for exonerating persons - for
instance, coercion, deception, etc. I want to avoid
repetition and point out only the following: It is quite
correct that the question of coercion and deception and
other reasons for exoneration of persons be discussed in
subsequent trials. In connection with this, Sir David also
called the attention of the Tribunal to a really noteworthy
problem, that is, the problem of a deception by the State,
that is, a problem of mass suggestion. This is really a very
important problem. It affects many members, as far as their
joining is concerned. But it leads to the broadest deduction
as to the guilt of the entire membership and the character
of the total organization.

We have, therefore, to pay particular attention as to how
the problem of deception on the part of the State affected
the member and thereby was characteristic of the
organization. All grounds for exoneration of persons are,
therefore, also to be examined by the Tribunal in judging
the question of the character of the organization.
Furthermore, evidence must be taken on the broadest basis.

If the Tribunal were to make any limitation now, there would
be the possibility that later, at the end of the trial, in
contrast to its present opinion, it might consider as
relevant material now excluded.

In yesterday's debate, the importance of the question was
discussed in regard to the proposed declaration of
criminality, as to what should be considered as constituting
knowledge on the part of the single member. Sir David here
applied the standard of a person of average intelligence,
and wants to consider as guilty anybody who was below that

                                                  [Page 123]

I have already recently explained that in regard to laws
threatening such a severe punishment, as in this case, all
systems of penal law require that wilful intention on the
part of the perpetrator be proved. Offences of negligence
are punishable only in exceptional cases, and then only with
minor penalties. At any rate, in a case of an offence by
negligence, it must be clear to the offender that he is
under a relevant legal obligation to obey Article No. 10,
and now, in connection with it, the proposed verdict of this
Court represents an ex post facto law.

In the case of the main defendants, the prosecution have
justified the deviation from the generally recognized
principle Nulla poena sine lege, on the ground that they
themselves did not act in accordance with this principle and
cannot, therefore, base their defence on it now. This,
however, does not in any way apply to the organizations,
quite apart from the question whether this argument can be
accepted at all.

Home ·  Site Map ·  What's New? ·  Search Nizkor

© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.