Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-213.02 Last-Modified: 2001/02/21 [DR. KUBUSCHOK, Continued] I do not deny that the Tribunal faces a very difficult task on account of this legal argumentation. In my deduction I started from the prosecution's concept that the proposed declaration comprises also the question of guilt of the individual member, and that in later proceedings this member must restrict himself merely to objections which refer to the fact of the membership itself. An absolutely necessary consequence of this concept is that the Tribunal has to restrict its decision to the number of cases of the individual members in order to avoid that the decision issued now embodies also the verdict of guilt of all members without an examination of the question of guilt of each individual member having been made, and that the innocent in fact are not declared accomplices indiscriminately without having been heard. The only way to avoid this would be a modified verdict which would merely establish objective historic events without thereby at the same time taking a decision as to the individual member and his subjective guilt. It is clear to me that such a modification would give rise to legal scruples with regard to the law of the Control Commission. We can approve of such a solution only if the Tribunal can eliminate these scruples and actually secure thereby that in later proceedings the case of the individual member is examined to the extent which I have mentioned. If one starts from the presumption that the organization finally represents the bulk of the individual members, it leads to the conclusion that the shaping of its purpose presupposes a general training of the will of all members. Without the unanimity of the members, a change in the purpose of an existing organization cannot be realized. All members must at least know the new aim and must be determined to sponsor it. Otherwise, if this new aim be a criminal one, the previous legal organization would be split into two, one with a legal tendency and another with a criminal one. It would then be impossible to declare the entire organization to be a criminal one. Furthermore the question is to be examined as to whether it is sufficient for the definition of a criminal character of an organization that a further criminal purpose is added to a hitherto legal one. Here also the previous conclusion should be considered that the definition "criminal" must comprise the unanimous aim of the organization as a body. Should the criminal purpose be only a part of the [Page 193] aim and should it be sufficient for the purpose of declaring the whole of the organization a criminal one, the legal aim would be at the same time discredited by this general definition. Must not these acts then, which were committed for the purpose of the fulfillment of the legal aims, be illegal ones as acts of an entirely criminal association? In respect to the case of the Reich Cabinet it seems impossible to me to declare this institution as indubitably criminal, if at the same time there can be no doubt that at least the legal acts were legal in their effect. The legislation of the Reich Cabinet since 30th January, 1933, which comprises all State administrations, has still today its predominant legal force. It would be an absurdity to consider these legislative acts as valid, if the aim of the Cabinet was an unrestricted criminal one. Another presupposition for the declaration proposed by the prosecution which we must consider is the freedom to join the organization. A freedom which must not only be present at the time of joining the organization but particularly at the changing of the original aim, and during membership of the organization. It must therefore be actually examined whether the right to remain in the Cabinet voluntarily was always conceded or whether the legal and actual conditions abolished that right, at least from a certain date onwards. Finally the question must be examined as to whether there existed throughout a cohesive connection between the persons who are indicted as members of the Reich Cabinet. Only such a connection would justify any acts, the Reich Cabinet is charged with being considered as having been committed by the Cabinet as a whole. This problem is already evident, because the prosecution, which for its part also generally considers a cohesive co-operation of the members of the organization to be necessary, has legally established the unity of persons (Personeneinheit), which it designates as "Reichsregierung," by the criterion of the right to participate in the sittings of the Cabinet. As these Cabinet sessions were discontinued in the course of time, it remains to be examined whether afterwards, in their stead, there was any other tie which bound the members in the same way in the performance of the activity under consideration by the prosecution. Starting from these general considerations dealing with the organizational problem as such, and the special problem of the case of the Reich Cabinet, the result of the evidence must now be examined in order to establish whether, as argued, the requirements for a sentence exist. First, I wish to turn to the personal limitation of the majority of the defendants. The prosecution starts from the right to participate in the Cabinet sessions. It thereby supposes that the criminal activity assumed by them took place within the framework of the personal connection afforded by the sessions. It thereby overlooks, however, that a number of persons mentioned in Appendices A and B of the Trial Brief were merely entitled to participate in those deliberations of the Cabinet sessions which concerned their administrative sphere. If the prosecution obviously fixes upon the resolution of all the participants, particularly in questions of general politics, those members who had the right to attend the consultations only occasionally and in part must, as a matter of course, be excepted from the organization in question. I, therefore, refer to Appendices A and B where the prosecution stated the extent of the right of participation for each of the persons mentioned. With reference to Appendix B, I should like to state that the Commanders-in-Chief of the Wehrmacht branches, that is, Fritsch, Brauchitsch, Raeder and Donitz, were only entitled to participate in Cabinet meetings on the basis of the Fuehrer directive of 25th November, 1938, that is to say, not generally. With reference to the legal point in the case of Keitel, I refer to Doctor Nelte's final speech. Also Schirach had the right to participate only when his sphere of activities was involved. In the case of Axmann this is shown correctly in Appendix B but in the case of Schirach it has been overlooked. In this respect, therefore, we have to supplement the list in Appendix B with reference to Fritsch, Brauchitsch, Raeder, Donitz, [Page 194] Keitel and Schirach. In addition to the above conclusion, I believe that Reich Commissioner Gerecke's right of participation was also restricted. Moreover, this case seems equally worthy of mention because Gerecke had already resigned in April, 1933. In this connection, those who, while they had the right of participation in the Cabinet sessions, had no voting right and were only present for information, should also be mentioned. In this category were Chief of the Press Dietrich and State Minister Meissner. The question of the voluntary status of membership in the Reich Cabinet cannot be answered uniformly. In dealing with the question of voluntary entry into the Cabinet, particularly those cases will have to be considered in which State Secretaries, who previously did not belong to the circle of the persons included by the prosecution, were, through the resignations of the ministers over them, immediately entrusted with the conduct of ministerial affairs and thus entitled to participation in the Cabinet sessions. To a certain extent their entry into their new post must be considered as part of their civil service career. The question of a member remaining in the Cabinet must be judged differently according to the time. Legally, the following must be borne in mind in this respect: According to Article II of the Reich Minister Act of 27th March, 1930 the Reichsministers could ask for their release at any time. An alteration of the legal position could already have occurred by virtue of the Ministers Allegiance Act, of 17th October, 1934, which is Document No. 22. According to this, the ministers had to swear allegiance and obedience to Hitler. A letter of resignation could be construed as a breach of allegiance and obedience and therefore be considered legally inadmissible. The question can, however, really be left at that. The legal consequences deriving from the ministers' oath are in any case expressly and legally established by the German Civil Service Act of 26th January, 1937 (2340-PS), which was put into effect on the 1st July, 1937. By this law the Reich Minister Act of 27th March, 1930, was cancelled. Article 161 stipulated that the Reich Ministers can now be discharged by Hitler alone. Legally, therefore, it was no longer possible for a Cabinet member to resign after the 1st July, 1937. It will be objected that nevertheless cases exist where Cabinet members have obtained their release. The cases of Gerecke, Hugenberg, Papen, Schmitt and Eltz von Ruebenach are prior to this time and must therefore be excluded. In the subsequent period, various Cabinet members endeavoured to resign. They mostly failed, as we have heard on many occasions during the hearings of the individual defendants. Many only succeeded in being discharged from their department but they were provided with a new title or a new office, so that they came again within the category of persons implicated by the prosecution. Darre was relieved of his official functions and even expelled, but could not obtain his official dismissal as minister. Schacht had for this reason been preparing to break with Hitler for a long time - that brought him to a concentration camp; State Minister Popitz was executed as a participant in the plot of 20th July, 1944. So we see that in spite of the legal position it was actually not possible for a member of the Cabinet to resign against Hitler's will. Even the prosecution admits that apart from the voluntary status of membership, a cohesive co-operation of the members must be established in order to consider the Reich Cabinet as an organization or group within the meaning of the Charter. It holds that this cohesive association can be seen in the Cabinet meetings and the circulating procedure. I shall show by the following that there was no such collective co-operation among the members of the Cabinet; that, as time went on, there was even a definitive split in the Cabinet. The evidence shows that three interlocking factors brought about a split in any internal cohesion of the Cabinet. These three factors are as follows: [Page 195] (1) The development of Hitler's absolute domination which increased until it became an absolute dictatorship. (2) The establishment of upper and lower ranks among the Cabinet Ministers having equal rights within the Cabinet itself, through the authority to give orders of the General Plenipotentiaries, Special Delegates, etc. (3) A carefully guarded secrecy, which precluded the individual Minister from any knowledge outside his Department, and thus made any super-departmental co- ordination impossible. In this connection it is necessary to consider historically the ensuing state of affairs and to find the reasons. Until 1932 one might be inclined to assume that the Reich Cabinets displayed a "Cabinet solidarity." At that time Cabinet meetings were continuously taking place, during which all Bills as well as differences of opinion on questions which affected the sphere of several ministers were submitted for consideration and decision. Resolutions were passed on the majority of votes. Even at that time, and at that stage of practice and knowledge, the idea of a collective responsibility of ministers was rejected. In the authoritative Manual of German Constitutional Law (Handbuch des deutschen Staatsrechts) by Anschuetz and Thoma, the well-known lecturer on Constitutional Law, Freiherr Marschall von Biberstein, wrote in 1930, vide Page 529: "General principles throw a most doubtful light upon the affirmation of collective responsibility for majority decisions, because, especially in jurisprudence, one can only talk of responsibility in regard to rational beings. An established State practice in the sense of such an affirmation cannot be proved for the Reich; on the contrary, the competent ministers make themselves personally responsible ... Above all, German political practice does not accept the principle of 'Cabinet Solidarity' as it is accepted abroad, especially in England, which involves a collective liability for all individual actions .... " This denial of a collective liability holds good not only for the responsibility of the ministers to the Reichstag, but also in the proceedings before the State Tribunal, before which the ministers could be indicted and sentenced for their activity - much in the same form as the English "impeachment." Moreover, at that time a restriction was placed on the passing of resolutions by the Cabinet, and thus on the free decisions of the ministers, by the right of the Reich Chancellor to determine policy, for which he then bore the sole responsibility. There were no discussions and consultations about these directives of the Reich Chancellor; they were binding for the ministers. Biberstein wrote about this in his thesis, Page 528 - THE PRESIDENT: The Russian translation is not coming through. Go on. DR. KUBUSCHOK: "Otherwise, by the encroachments which ... his (the Minister's) free decision suffered through the binding force of the Chancellor's directives. As it was his duty to conform therewith, his position was similar to that of a subordinate in the hierarchy of authorities in regard to the orders of a superior: thus he himself was not able to examine whether in his conduct he was complying with duty, and the result was that he could only show that he had acted in accordance with orders, and not whether he had acted rightly. Thus the responsibility is shifted to the person giving the orders." Thus we have to admit that, in a period of a purely democratic German form of government and State procedure, "Cabinet solidarity" did not exist, in spite of regular Cabinet meetings, and that the ministers certainly did not work in cohesive co-operation when at the Cabinet meeting the Reich Chancellor used his right to determine a policy. For the period prior to the establishment of the Hitler Government, it will further have to be considered that the government authority had slowly devolved upon the person of the Reich President by the application of the emergency powers [Page 196] law (Notverordnungsrecht). Already at that time the normal legislative body, the Reichstag, was enacting laws only to a diminishing extent; the decisive laws were being issued by the Reich President on the strength of the emergency powers law. The ministers, therefore, were no more than advisers of the Reich President. It is a symptom of this development that the Papen Cabinet had already been established purposely by Hindenburg as a Reich President Cabinet (Praesidial- kabinett), that this Cabinet was composed of people in whom Hindenburg had confidence, whom the latter had appointed as special ministers (Fachminister). The position of the Reich Chancellor, therefore, gained considerably in importance, because neither the ministers nor the Reich Chancellor had been appointed as exponents of the parties, with the result that their position vis-a-vis the parties was more independent than was the case previously. The Reich Chancellor was the liaison man between the Cabinet and the Reich President. It was this position in particular which gave him a distinct superiority over the other ministers. That was the situation when Hitler became Reich Chancellor. In its early stages his Cabinet was also a Reich President Cabinet, which depended on the confidence of the Reich President and his emergency powers law. Up to the time of the passing of the Enabling Act (Ermachtigungsgesetz) of 24th March, 1933, all laws were issued on the strength of the emergency powers and therefore were under the responsibility of the Reich President. The Enabling Act was the decisive factor in the further development. The legislative powers were now transferred to the Reich Cabinet. These were not directed to Hitler personally but to the Reich Cabinet. I do not claim that the Reichstag of that time already regarded Hitler as the Reich Cabinet. But it is certain that the Reichstag was influenced by the system of emergency decrees which had been the Government policy for a long time. Therefore by its nature this new emergency legislation of the Reichstag had no other purpose than to legalize this state of things for a future emergency. Thus did the Reich Cabinet, whose inner structure and working methods had been shaped during the time of the Reich President Cabinet, come to hold sole legislative powers. It is true that the sole responsibility, such as was assumed by the Reich President when passing the emergency decrees, was not transferred to Hitler. But to a certain extent he filled the gap caused by the elimination of the Reich President. This became apparent to those outside when the Reich President's right to frame laws was transferred to him. To this was added his right as Chancellor to determine the basic guiding principles of policy. Both factors together resulted doubtlessly in a considerable strengthening of Hitler's power in the Cabinet over and against his ministers. The seeds for his later autocracy had been sown.
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