The Nizkor Project: Remembering the Holocaust (Shoah)

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According to the Charter on the question of declaring an
organization criminal, the Tribunal will decide in
connection with individual defendants. Article 9 states that
in examining the materials with regard to each defendant,
the Tribunal shall have the right to declare - and so on.
Therefore, the conclusion is that the facts which decide the
solution of the question as to whether an organization is or
is not criminal, consist of whether there is before us today
among the defendants a representative of this or that
organization. It is well known in the present trial that all
the organizations which the prosecution wants to be declared
criminal are represented on the bench of the defendants. For
that reason alone, there has passed through the hands of the
Tribunal a great deal of material and evidence relating to
the criminal nature of the organizations which these
defendants have represented, that can be used by the
Tribunal to draw a conclusion as to the criminal character
of various organizations. Under such conditions, the
necessity of calling special witnesses to testify about this
or that organization can arise only as a source of
supplementary and even eventual evidence. And even then, the
Tribunal has stated in Article 9 that it is for the Tribunal
to acquiesce in or to refuse the calling of witnesses or the
introduction of supplementary evidence. It is impossible to
deny the possibility or the necessity of supplementary
evidence with regard to any criminal organization. The
Charter of the Tribunal states very definitely that after
the indictment has been made, the Tribunal will do that
which it considers necessary with regard to the
prosecution's request for declaring this or that
organization criminal. Any member of an organization has a
right to request that the Tribunal permit him to be heard on
whether the organization was criminal. However, this was
introduced into the Charter of the Tribunal for the sake of
justice. It now appears that this article is used for other
purposes. If what has been provided for in Article 9 extends
widely enough, and if it already provides for calling
witnesses with regard to the criminality of this or that
organization, in substance the evidence submitted by the
prosecutors of the four countries has already given enough
exhaustive reasons for the Tribunal to recognize the
organizations indicated in the indictment as criminal. At
the same time it seems expedient that the Tribunal should
make known Article 10 of the Charter, explaining that to
declare an organization criminal does not necessarily lead
to an automatic bringing to trial of all members of that
organization without exception. It means that all questions
about bringing any member to trial and about the
responsibility of individual members will be decided by the
National Tribunals.

This is all I wanted to state, in addition to what has been
stated by my colleagues.

                                                   [Page 61]

THE PRESIDENT: Have the defendants' counsel arranged among
themselves in what order they wish to be heard ?

DR. KUBUSCHOK (counsel for the Reichsregierung): As counsel
for the Reichsregierung, which has first place in the
Indictment as a "criminal organization," I have, according
to the decision of the Court, the duty of giving my opinion
in regard to the presentation of evidence. Since, in so
doing, I have to discuss general points of view which affect
in the same way all the six organizations under indictment,
it is probable that my statements will in the main,
constitute the opinion of other defendants' counsel.
However, they reserve for themselves the right to express
particular and supplementary opinions.

The defence understands the decision of the Court of 14th
January, 1946, to mean that at this stage of the procedure
the defence should not produce detailed arguments against
the indictment as it has been lodged by the prosecution and
as it has been explained today, or against the concept of
criminal organizations in the sense of the Charter, or
against other hypotheses of a declaration of criminality,
but should only express its opinion on the question of what
evidence is relevant and how the evidence shall be
presented. Therefore, I shall speak about the basic
questions only insofar as this seems necessary today in this
particular connection. First of all, I shall speak about the
contents and the effect of the verdict asked for.

The six organizations under indictment are, according to the
request of the prosecution, to be declared criminal
organizations in their entirety. A request of that kind and
the proceedings required by it would represent, in the
jurisprudence of all States, something unheard of.

As we know, this request is not uninfluenced by the fact
that, contrary to other nations, in England and even more so
in the United States, even companies and corporations as
such can be prosecuted in some cases, for reasons of
expediency. This is a legal development called for by the
dominant position which companies and corporations have
acquired above all else in economic life.

This position made their punishment seem desirable in
certain cases. They were affected by this punishment,
however, only to the extent to which they could be affected
in their economic sphere, that is to say, by the imposition
of fines. This also concerns only definite offences, mostly
in the field of administrative law.

The American Chief Prosecutor and the other Chief
Prosecutors have cited a large number of precedents, even
from German jurisprudence, in which organizations are said
to have been declared criminal. In these precedents - and
that is the decisive factor - the defendants convicted as
criminals were always individual persons, never
organizations as such. But a criminal procedure such as this
one, would have to deal most seriously with the
organizations as such, as well as with all the members who
are not indicted personally, that is - I now refer to Law
No. 10 of the Allied Control Council - would have to
pronounce the most severe sentence, the sentence of death;
such a procedure has never yet in the history of
jurisprudence been applied.

The organizations under indictment are organizations which
differ greatly in their structure. I do not have to discuss
further today whether they always represented an organized
unit. For this trial the essential thing is that the
organizations under indictment have been dissolved by a law
of the Military Government, and therefore, no longer exist.
What still exists are only the individual former members,
who, therefore, in reality are the actual defendants and
have simply been brought together under the name of the
former organization as a collective designation.

But independently of this question of the non-existence of
the organizations, it can be seen from the outcome of the
procedure that this is indeed a collective procedure against
the individual members of the organization, and this for the
following reasons:-

First, to declare an organization criminal means the
outlawing and branding as criminal, not only of the
organization as such, but, above all, of each individual

                                                   [Page 62]

member. Such a declaration, therefore, means a final
sentencing of each individual member to a general loss of
honour. The effect of this outlawing and branding is
unavoidable and ineradicable, especially if that verdict is
pronounced by so important a Court as the International
Military Tribunal before the forum of the world. The effect
of the outlawing would apply to each member of the
organization and would cling to him, regardless of whether
the subsequent proceedings, as provided for in Article 10 of
the Charter, were carried out against the individual members
or not.

Second, in respect to legal procedure, the verdict that has
been asked for provides the possibility of a criminal
penalty for each individual member of the organization. In
the subsequent proceedings, according to Article 10 of the
Charter, the criminal character of the organization will be
considered conclusively determined.

In execution of this, Law No. 10 of the Allied Control
Council of 20th December, 1945, has in the meantime been
issued. According to this law, the mere fact of having been
a member of an organization which has been declared criminal
by the International Military Tribunal, renders liable to
punishment as a criminal each individual member. Penalties
ranging from the highest fines to compulsory labour for life
and the death penalty are provided.

The proceedings according to Law No. 10 are concerned only
with determining membership, and bases the punishment on
this. In these proceedings, only grounds for personal
exoneration, such as irresponsibility, error or coercion can
be discussed. But these concern only the membership as such
and will apply only in a very few cases.

Whatever concerns the character of the organization, the
criminal aims and actions of members of the organization,
especially the individual member's knowledge of these, all
these are matters which will not be discussed any more in
the proceedings according to Law No. 10. In the proceedings
against the organizations, a binding declaration has been
made. Therefore, the proceedings against the organizations
anticipate the most important part of the proceedings
against every individual member, while the subsequent
proceedings, according to Law No. 10, to all intents and
purposes only draw conclusions.

In connection with the question of the effect of the
verdict, the numerical aspect should also be touched upon.

The SA at the beginning of the war in 1939 had about two and
a half million active members, to which should be added, let
us say, one to two million representing those who during the
preceding eighteen years either had left the SA or had to
leave because of their military service; making a total of
about four and a half millions.

As far as the SS is concerned, my colleagues have not yet
been able to give a final estimate. It will have to be
considered that the Waffen SS alone had an active membership
of several hundred thousand men at any given time. If we
take into account the losses due to the war, which were very
considerable, but which to a certain extent were assessed in
the proceedings, we find in the case of the SS as well that
the figure runs into millions.

The Leadership Corps always had, after 1933, a fixed
membership of about six to seven hundred thousand members.
Changes in the official personnel were very frequent. We
have to take into account two complete turn-overs during the
entire period, so that here also the complete figure will be
about two million.

The entire figure covered by these proceedings is therefore
very large. The reduction which the Tribunal has today
thought fit to make, would not reduce that number to any
very large extent. Basically, it will certainly make no
difference whether this very large number which I have just
mentioned is to include a half, a third or a quarter of the
adult male population of Germany. If we consider the war
losses among these age groups, we can say with great
certainty that the Indictment will actually include a very
considerable part of the adult male German population.

                                                   [Page 63]

I shall speak now about the concept "criminal organization."
The necessary condition for an organization to be declared
criminal is the criminal character, as appears in Article 9,
Paragraph 2, of the Charter. The Charter does not interpret
either the concept "criminal character" or that of "criminal
organization." If we ask by means of which legal system this
gap in the Charter should be filled, then, according to the
general principle of lex loci, German Law first of all has
to be considered. But that is of no avail, because these two
concepts, according to every legal code in the world, also
represent a terra nova in criminal law. Here too, the
defence reserves for itself the right to express its well-
founded opinion at the time of the final pleadings.

In any case we are of the opinion that within the framework
of the Charter's validity and because of the far-reaching
consequences already mentioned, the declaration asked for
can be made justly and fairly only if (1) the original
purpose that is, the constitution or the charter of the
organization - was directed to the commission of crimes in
the sense of Article 6 of the Charter, and if this purpose
was known to all members; (2) the original purpose of the
organization was not criminal, if all members during a
certain period of time provingly participated in the
planning and perpetration of crimes in the sense of Article
6 of the Charter. Here, also, it is necessary that the
development should have been such that these crimes
represent typical actions of the organization, for only then
can we speak of a criminal nature as applicable to an
organization as well as to an individual human being.

According to this interpretation, the concept "criminal
organization" in the sense of Articles 9 to 11 of the
Charter is in largely identical with the concept "criminal
conspiracy" which plays an important role in the former
German and Italian criminal law; also with the concept
"conspiracy," with or without action for its execution, in
English or American common law; also with the concept
"Mordkomplott " (conspiracy for the purpose of committing
murder) in the sense of Paragraph 49-b of the German Penal
Code; and, finally, with the concept of a Common Plan or
Conspiracy in the sense of Article 6 of the Charter, here
also with or without action for its execution.

All these penal codes have in common that judgement can be
delivered only against those persons who have taken part in
the criminal organization knowing its purpose.

In my opinion, negligence cannot be sufficient when passing
judgement subjectively, because of the general principle
that in cases of serious crimes, and in this case the
penalty may be death, there must always be full proof, and
that negligence cannot be sufficient. Therefore, as a matter
of principle, it has to be required in these present
proceedings that an organization under indictment can be
declared criminal only if it has been ascertained that,
firstly, the aims of the organization were criminal in the
sense of Article 6 of the Charter, and, furthermore, that
all members at least knew of these criminal aims. This is
also necessary for the reason that, as has just been said,
this trial before the International Military Tribunal
represents the essential main part of the criminal
proceedings which will ascertain the guilt of each
individual member of the organizations.

Justice does not permit that those members who did not
possess the afore-mentioned knowledge, and who are,
therefore, innocent be included in a verdict.

This will not lead to that consequence mentioned by Mr.
Justice Jackson, namely, that a rejection of the verdict
would mean a triumph for those who are guilty. I am of the
opinion that the guilty ones, regardless of their number,
should be brought to punishment.

Despite all considerations of expediency, the issue should
not be that along with the guilty ones an enormous number of
innocent persons also be punished.

Therefore, to come to the core of the question, this is to
be regarded as relevant. The relevancy and admissibility of
evidence depends on a definition of the criminal
organization and of its criminal character, and on the basis
of my definition

                                                   [Page 64]

I contend that the following points are relevant:-

  (a)That the organizations, according to their
  constitution or statutes, did not have a criminal
  composition and did not pursue any criminal aims in the
  sense of Article 6 of the Charter.
  (b)That within the organization, on in connection with
  it, crimes in the sense of Article 6 were not, or at
  least not continuously, committed during a certain period
  of time.
  (c)That a certain number of members had no knowledge of
  any possible criminal constitution or criminal purpose,
  or the continuous commission of crimes according to
  Article 6, and that they also did not approve of these
  (d)That a certain number of members or certain
  independent groups joined by these organizations under
  compulsion or pressure or as the result of deception or
  by order from higher authorities.
  (e)That a certain number of members without any action on
  their part, became members of these organizations through
  the bestowal of honorary membership.

Since I know that the questions to be decided represent a
terra nova in the field of criminal law, I believe that in
the course of the presentation of evidence we shall receive
many other suggestions, Therefore, it will be expedient it
the Tribunal at the present stage of the trial does not bind
and limit itself by a final definition. I ask rather that
the evidence be admitted to the greatest  extent. In
conclusion, I come to the question of how the presentation
of evidence can be carried out in practice and how the legal
hearing of the member can be made possible according to
Article 9, Paragraph 2, of the Charter.

The principles  valid in criminal procedure in all countries
allow every defendant before the Court certain rights. The
most important principles are the principle of direct, oral
proceedings and the right to defence and to a legal hearing.
Since, according to my statements, the real defendants are
the members of the organizations, these rights must be
accorded to every member of the organization. In spite of
this basic point of view, which will be discussed in still
greater detail in our final pleadings, and with all legal
reservations, the defence does not overlook the fact that
for all practical purposes this is impossible within the
framework of this trial. A solution must be found, since the
prosecution has lodged the indictment of the organizations
on the basis of the Charter in its present form.

This leads to the necessity of carrying out the proceedings,
in such a way that the aim of all people taking part in the
trial can be only to find the best possible solution, by
getting as close as possible to the generally accepted, and
in our opinion, inviolable, points of view.

In this connection the defence in the same way as the
prosecution, is fully aware of its duty to work
constructively towards a decision by the Tribunal.

If the fact that the enormous number of people who are
affected by the Indictment gives rise to tremendous
difficulties, which prevent a reasonable solution of this
problem, an adequate basis for judgement of the aims of the
organizations, as well as the actions and the subjective
attitude of the individual member of the organization must
nevertheless be found.

In order to make any headway in these proceedings at attempt
must be made to attain a result in respect to the collective
membership by classifying certain types. We do not fail to
recognise the great difficulties which confront the passing
of a just sentence when a typical aspect is taken as a basis
for judgement. Every attempt to attain, on the  basis of a
large number of individual witnesses to be brought before
the Court, a clear picture of that which is typical would be
unavailing. The only way, in our opinion, is to separate the
presentation of individual evidence, in respect to time and
place, from this Tribunal.

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