The Nizkor Project: Remembering the Holocaust (Shoah)

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[SIR DAVID MAXWELL FYFE, Continued]

IV. THE CRIMINAL AIMS AND METHODS OF EACH OF THE
ORGANIZATIONS WERE KNOWN OR SHOULD HAVE BEEN KNOWN TO THE
MEMBERSHIP

All members of the Reich Cabinet had full knowledge of the
functions and activities of the Cabinet. They carried out
their work together. They met as a body. They considered
proposed measures as a group, and they acted as a Cabinet.
Sometimes they met as the Reich Cabinet, sometimes they met
as the Reich Defence Council. But in every case they jointly
considered proposed legislation and enacted the laws which
gave the rubber stamp of legality to the machinations of the
leading conspirators. From the budgetary matters of the
Reich alone, if from no other source, the members of the
Cabinet, each year of the Nazi regime, were of necessity
informed to a very extensive degree on all matters that were
going on in Germany. They knew about the concentration camp
system because they voted the money for maintenance of
concentration camps, and because their ministers inspected
these camps. They knew about the plans for aggressive war
because they laid the legislative groundwork for the war
economy. They knew about the forced labour of prisoners of
war in armament industries because they planned it even in
advance of war. They prepared the political plans for the
entire programme of aggression and of aggrandizement.
Planning requires consultation, and consultation imparts
knowledge.

Any member of the SA who could read had full knowledge of
the aims and objectives of the SA. The weekly periodical Der
SA Mann and the monthly periodical Der SA Fuehrer stated
time and again the purposes, objectives, tasks and methods
of the SA. The duties and activities of the SA in fighting
in the streets, abusing political opponents, and in
chastising Jews, are stated in every issue of those
publications. The para-military nature of the organization
was self-evident. The SA participated in election
proceedings, in the plan to set fire to the Reichstag, in
anti-Jewish pogroms and boycott activities. Its activities
were widespread and well known and its criminality was open
and notorious. Much of this infamy was commonly known
throughout the world. Indeed Dr. Wilhelm Hogner, the Prime
Minister of Bavaria, stated in his affidavit:

                                                  [Page 309]

"The gross excesses of the SA and SS in the service of the
NSDAP were accomplished so publicly that the whole populace
knew of them. Everyone who entered these organizations as a
member knew of such excesses." It is stretching reason and
experience too far to believe that SA members in Germany
knew less than non-members abroad.

The Political Leaders dealt in information and in
propaganda. They were the agents of the ideology, and the
political detectives who checked on the reactions of the
people. Knowledge for them was a two-way circuit. They knew
the plan and its operations and they learned of its effects.
A typical example is found in the order to lynch Allied
airmen. This order had to be passed throughout the
Leadership Corps in order to reach the lower echelons who
were to carry out the lynchings. They saw to it that the
order was carried out and they made reports on its
effectiveness. There were no secrets in any Nazi cell or
block unknown to them. The turn of a radio dial - the facial
expression of disapproval - the inviolate secrets between
cleric and suppliant - the ancient trust between father and
son - even the sacred confidences of marriage - were the
stock-in-trade. Knowledge was their business.

Every member of the SS took an oath of obedience unto death
to Hitler, and every member of the SS was indoctrinated in
the full meanings of Hitlerian ideology. In 1936, Himmler,
in describing the SS as an anti-Bolshevistic fighting
organization, openly stated: "We shall take care that never
again in Germany, the heart of Europe, will the Jewish-
Bolshevistic revolution of sub-humans be able to be kindled
either from within or through emissaries from without." Can
it be doubted that SS men understood the meaning of those
words? Or of Himmler's confession: "I know that there are
some people in Germany who become sick when they see these
black coats. We understand the reason for this and do not
expect that we shall be loved by too many." The sickness
which overcame people when they saw the black coats was the
sickness of fear - fear of the brutal methods of the SS, the
murders they committed on the streets, and the beatings they
inflicted in the concentration camps. It was known to
everyone that black-coated SS men carried out the murders of
30th June, 1934. Von Mannstein testified that soldiers so
feared the evil of the SS that they were afraid to report SS
mass killings in the East. The knowledge that was necessary
to bind the SS organization was the knowledge that a member
of the Death's Head Battalion had of atrocities committed in
the concentration camps, that a member of the anti-partisan
bands had of the killings, kidnappings and plunder that went
on behind the fighting lines, that a member of the SS Panzer
Divisions had of the killings of prisoners of war, or that a
member of the SS Medical Corps had of the savage experiments
on human beings. This knowledge was diffused by frequent
changes in their duties. The Death's Head Battalions, which
at first were charged with the guarding of concentration
camp inmates, subsequently were put into the fighting
troops, and the Waffen SS were used for guarding
concentration camps and for carrying out exterminations in
annihilation centres. The letters SS came generally to be
known as the symbol for an organization both sinister and
savage.

The objectives of the Gestapo were laid down by law and
discussed time and time again in semi-official publications
such as Der Volkischer Beobachter, and Das Archiv, the
magazine of the German Police, and Best's basic handbook on
the German Police. Every member knew that the Gestapo was
the special police force set up by Goering and developed by
Himmler to strike down potential opponents of the tyranny.
Every member knew that the Gestapo operated outside the law,
that the Gestapo could arrest on its own authority and
imprison on its independent judgment. Every member knew that
the Gestapo was the agency which filled the concentration
camps with political opponents. All knew that the Gestapo
was organized for the specific purpose of persecuting the
victims of Nazi oppression - the Jews, the Communists, and
the Churches. The right to use torture in interrogations
must have been known to all who interrogated.

                                                  [Page 310]

There could be no secrecy as to the criminal aims of the
Gestapo or the criminal methods by which this primary agency
of terror carried out its work. That it was an instrument of
terror was known not merely by its members - it was known
throughout Germany and Europe, and in every country of the
world, where the very name Gestapo became the watchword of
terror and fear.

We ask that a common-sense and realistic test of knowledge
be applied by the Tribunal in judging these organizations
for what they are, the most vicious and evil of all Nazi
inventions. Surely they shall not escape condemnation for
the vast crimes they committed through a false and flimsy
defence of ignorance in their own circles. For long, long
years after this hall is emptied and for centuries beyond
present perspective, the roll-call of terror against
humankind will be led by these appellations - Nazi, Nazi
Party Leadership, SA, SD, SS, and Gestapo.

V. THERE IS IN THE DOCK A REPRESENTATIVE MEMBER OF EACH
ORGANIZATION GUILTY OF SOME ACT ON THE BASIS OF WHICH THE
ORGANIZATION MAY BE DECLARED CRIMINAL

The Charter requirement, that there be a member of each
organization in the dock who is guilty of an offence
relating to the organization of which he is a member, was
made for the purpose of assuring that there would be present
before the Tribunal someone who could speak for each
organization. The great number of witnesses who have
appeared before the Commission and the Tribunal on behalf of
the organizations has, in effect, made superfluous this
Charter protection to the organizations. Over 300,000
members of these organizations have been heard either in
person or by affidavit.

The measure of criminality of each organization is not
limited to the acts committed by the defendant in the dock
who was a member of the organization. It is wholly
sufficient to meet the Charter requirements if the defendant
member is guilty of some crime relating to his position as a
member of the organization. In every case the criminality of
the named organizations is based upon evidence which greatly
surpasses the specific criminal acts of the defendants. The
concept of membership stated in the Indictment in this
connection is in no sense a technical one. The word
representative might as well have been used, since the
object of the provision was to ensure that there would be
some defendant qualified to speak for or otherwise represent
each of the named organizations.

Seventeen of the twenty-two individual defendants were
members of the Reich Cabinet. All of these defendants
participated to a greater or lesser degree in the meetings
of the Reich Cabinet, of the Secret Cabinet Council, and of
the Reich Defence Council. All of them considered, acted
upon, and participated in the enactment of the legislation
which led to the instigation of wars of aggression and the
commission of discriminatory acts against racial minorities.
The criminality of each of these defendants is founded in
part upon his participation in the supreme legislative body
of the Nazi system, the Reich Cabinet.

Ten of the individual defendants were members of the
Leadership Corps. The activities of Gauleiter von Schirach
and Streicher are illustrative of the criminality of all of
these defendants in their capacity as leaders of the Nazi
Party. It was as Gauleiter of Franconia that Streicher
carried out his venomous campaign against the Jews, and it
was as Gauleiter of Vienna that Schirach exploited slave
labour.

Nine of the defendants were SS members. It is hardly
necessary to go beyond SS Obergruppenfuehrer Kaltenbrunner
as a representative of this organization. Here is a
defendant who was the head of the most powerful department
in the entire SS, the Reich Security Main Office. His
activities in directing this organization need no
amplification. His shame disgraces all.

Eight of the defendants were members of the SA, of which
Goering assumed command in the year 1923 at the very
inception of the Nazi struggle for power.

                                                  [Page 311]

It was Goering who directed the SA in the Munich Putsch, and
it was Goering who built and made of the SA a fighting body
of street rowdies.

Goering and Kaltenbrunner were members of the Gestapo.
Goering, the founder of the Gestapo, bragged that every
Gestapo bullet fired was his bullet, and that he assumed
full responsibility for the acts of the Gestapo and was not
afraid to do so. As chief of the Reich Security Main Office,
Kaltenbrunner had direct responsibility for the Gestapo. The
Tribunal has seen orders for commitments to concentration
camps carrying his typed or facsimile signature, it has
reviewed evidence that executions in concentration camps
were issued in his name, and it has examined many criminal
orders from him, as Chief of the Security Police and SD, to
regional Gestapo offices.

The integration of defendants and organizations is further
demonstrated by the fact that most of the defendants were
members of more than one of the named organizations. Frank,
Frick, Goering, and Bormann were members of four. Cabinet
members Ribbentrop and Neurath were SS generals. SA Generals
Rosenberg and Schirach were Cabinet members. Gauleiter
Sauckel and Streicher were SA generals. Field-Marshal Keitel
and Admiral Donitz were Cabinet members. The complete
significance of this integration is shown in the sinister
murder of the French General Mesny. This murder was directed
and planned by SS Obergruppenfuehrer Kaltenbrunner, as head
of the Gestapo and SD, and by SS Obergruppenfuehrer
Ribbentrop, as a member of the Reich Cabinet. Kaltenbrunner
worked out the mechanics of the murder and Ribbentrop worked
out the plan of deception. Counsel for the Gestapo argued
that the murder was accomplished by the Reich Criminal
Police rather than by the Gestapo since at the time
Panzinger, who worked out the details, had succeeded Nebe as
chief of Office V of the RSHA. But there is nothing to show
that Panzinger relinquished the post he had held for years
as head of the department in the Gestapo responsible for
special actions and assassinations. The murder of General
Mesny was a political action, a matter under cognizance of
the Gestapo, not of the Criminal Police.

If it is contended that this nefarious episode was an act of
reprisal, then I ask the Tribunal to bear in mind that
reprisals against prisoners of war are expressly forbidden
under the 1929 Convention to which Germany was a signatory.
The whole macabre tragedy, from the faked removal of Mesny
from the officers' prisoner-of-war camp at Koenigstein to
the sacrilegious ceremony attending the burial of his ashes
with military honours at Dresden, required the connivance
and action of the Reich Cabinet, the military men, the SS,
the SD, and the Gestapo. Throughout this particularly sad
and sordid episode there is evident the outstanding fact of
all Nazism - hypocrisy. This was white collar homicide,
custom built for deceit, starched up with foreign office
formality, bearing the cold sheen of Kaltenbrunner's SD and
Gestapo, and supported and sustained by the outwardly
respectable yoke of the professional army.

Mr. President: Counsel for the defendant organizations have
each taken a large part of their time in arguing the legal
principles which derive from the Charter, and, in many
cases, seek to go behind the Charter itself. They have
argued that the procedure envisioned by the Charter amounts
to collective punishment, that the idea of fastening
criminality on organizations is unique in law and that the
maxim nulla poena sine lege is being violated by these
proceedings. I shall not review the legal arguments on this
subject, since they were exhaustively covered by Mr. Justice
Jackson in his address in February. But I do assert again
that we are not here seeking a collective condemnation of
individuals; we are seeking to establish one thing - and one
thing only, that these organizations which, taken together,
fastened the Police State upon Germany and perpetrated these
crimes, shall be characterized in history for what they were
- organizations the aims, purposes, and actions of which
were basically criminal, and which openly violated all
tenets of decency and law held in every civilized society.
Defence

                                                  [Page 312]

counsel argue that if you declare these organizations
criminal, the members will become martyrs. I say that if you
exonerate these organizations, the members who took vows of
unconditional obedience to Hitler and to Himmler and who
committed millions of people to concentration camps,
maltreated and starved and murdered thousands more in the
names of these organizations, will say: "We are vindicated.
What Hitler and Himmler told us was the truth. These
organizations to which we gave our unconditional obedience
were not criminal organizations and we are not to be
censured for having belonged to them." They will find in
your acquittal of these organizations justification for
these horrible crimes and the opportunity for reviving them
in one form or another to inflict again upon the civilized
world the terrible consequences of criminal group action.

Reference has been made in the argument to the Sedition Act
of 1940. This Act was rot cited, as was suggested, to
establish an identity of legal situations between the Act
and the Charter of this Tribunal. It was cited only to show
that the concept of organizational criminality is not
foreign to Anglo-American jurisprudence. Under the Sedition
Act, each person indicted has the opportunity of resisting
in Court the charge of criminality of the organization to
which he is accused of belonging. But that is not to say
that, apart from constitutional questions which are
inapplicable here, the Congress of the United States could
not provide, as in this Charter, that the criminal character
of the organization should first be litigated in a general
proceeding in which all members are given a chance of
appearing in person or by representation, reserving their
personal defences to subsequent trials in which they may
contest all questions except the single question of whether
the organization was criminal. What we seek here is not a
criminal conviction of the members of these organizations.
Their individual criminality is not an issue before this
Tribunal. The only issue is whether the Tribunal shall or
shall not declare these organizations to have been criminal.

The very anonymity which the Nazis intended to give to crime
by the use of these organizations plagues us to the end of
this Trial. After these proceedings are concluded, this same
organizational anonymity will plague the Allied Powers in
seeking to bring to book those who are responsible for these
terrible offences. It is a sobering fact that the vast
majority of the crimes committed in the names of these
organizations must go unpunished. But Nazism must not escape
by this route which it made for itself; it must not survive
in secret and undenounced organizational entities to prepare
a new onslaught against civilization. By a declaration of
criminality against these organizations, the Tribunal will
give a warning to not only the people of Germany but the
people of the whole world. Mankind will know: that no crime
will go unpunished because it was committed in the name of a
political party or of a State, that no crime will be passed
by because it is too big; that no criminals will avoid
punishment because they are too many.

On 28th February, 1946, in this courtroom, the Chief
Prosecutor for the United States of America, Mr. Justice
Robert H. Jackson, made a statement before this Tribunal
concerning the criminality of these organizations. That
statement represents the attitude of the United States. I
can do no better than to remind the Tribunal of it again:

  "In administering preventive justice with a view to
  forestalling repetition of these Crimes Against Peace,
  Crimes Against Humanity and War Crimes, it would be a
  greater catastrophe to acquit these organizations than it
  would be to acquit the entire twenty-two individual
  defendants in the box. These defendants' power for harm is
  past. They are discredited men. That of these
  organizations goes on. If these organizations are
  exonerated here the German people will infer that they did
  no wrong, and they will easily be regimented in
  reconstituted organizations under new names behind the
  same programme.
  
  In administering retributive justice it would be possible
  to exonerate these organizations only by concluding that
  no crimes have been committed by the

                                                  [Page 313]

  Nazi regime. For these organizations' sponsorship of every
  Nazi purpose and their confederation to execute every
  measure to attain these ends is beyond denial. A failure
  to condemn these organizations under the terms of the
  Charter can only mean that such Nazi ends and means cannot
  be considered criminal and that the Charter of the
  Tribunal declaring them so is a nullity."

THE PRESIDENT: The Tribunal will adjourn.

(The Tribunal adjourned until Friday, 30th August, 1946, at l000 hours.)


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