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Last-Modified: 1999/11/22

MR. BIDDLE: Now, somewhat along those same lines, you
stated, in trying to define what a criminal organization
was, that its membership must have been - I am quoting your
words - "generally voluntary" and its criminal purpose or
methods open and notorious and "of such character that its
membership in general may properly be charged with knowledge
of them."

Now, I am going to ask you a question which is somewhat
repetitious of what the President asked you, but perhaps you
can clarify the matter a little more. Would it not be
inconsistent with that test which you suggest for
criminality, if we decline to consider whether any
substantial segment of the organization - I mean a section
or segment might comprise a third of the whole organization
or even more, like the Waffen SS within the General SS - was
either conscripted, which is one test, or ignorant of the
criminal purpose, because if such a substantial segment
Earlier, Mr. Biddle and Mr. Jackson were considering Article
10, and Mr. Jackson expressed some criticism concerning the
penalties, which are not individualized penalties, since
they can extend as far as the death penalty.

There are, of course, some crimes for which capital
punishment seems justified, such as Crimes Against Humanity.
But is it not going too far, to consider imposing the death
penalty as the maximum for a crime which in France would
perhaps, be considered purely "material" - the crime of
belonging to a criminal organization? Would it not be too
severe, for us to impose the death penalty? And might not
the International Military Tribunal be forced to reduce
unduly the notion

                                                  [Page 105]

of a criminal organization, precisely because we consider
the possibility of this penalty being too severe? In other
words, does Mr. Jackson absolutely exclude for the
International Military Tribunal the power to fix a penalty,
or at least a maximum penalty, for the crime of belonging to
a criminal organization?

MR. JUSTICE JACKSON: I should not think that it was within
the proper sphere of the Tribunal to deal with the question
of penalties, for the reason that no power to sentence any
one other than the defendants on trial is given to this
Tribunal; I mean, no power to sentence for membership in the
organizations. Therefore, I think no incidental power to
control penalties is given, but the power to declare an
organization criminal does, incidentally, confer power to
determine what that organization is, and I have not been
disposed to question the power of the Tribunal to carry that
definition to great detail, although I would question the
wisdom of it.

The power, however, of sentence for membership is not even
remotely conferred upon the Tribunal, and I would think that
that would be a rather drastic expansion of its powers.

M. DE VABRES: Those were the only questions I wished to ask.

THE PRESIDENT: We will adjourn for ten minutes.

(A recess was taken.)

THE PRESIDENT: Sir David did you want to add a reply or did
you come in order that we might ask you some questions?

SIR DAVID MAXWELL FYFE: First, if the Tribunal will allow
me, there are three or four points on which I should like to
add a word.

The first point that Dr. Kubuschok made was that the
procedure of asking for a declaration against the
organizations was objectionable for two reasons: first,
because it was founded on the limited phenomenon in Anglo-
Saxon jurisprudence, that a corporation may be convicted in
certain limited spheres and secondly, that the organizations
were in fact dissolved some time ago.

I think it is important to stress that that is not the legal
conception which underlies this portion of the Charter. It
is really based, in my submission, on a doctrine found in
most systems of law, either res adjudicata or the conception
of the judgement in rem as opposed to the judgement in
personam. That is, that it is in the general and public
interest that litigation on a particular point should not be
interminable, and that, if the appropriate Tribunal has come
to a decision on a point of general interest and importance,
that point should not thereafter be litigated many times.

It is the essential view of the prosecution here that this
Tribunal, having had the advantage of evidence dealing with
the whole period and functioning of the Nazi conspiracy, is
the appropriate and, indeed, the only suitable tribunal for
deciding the question of criminality. It is a prospect which
would be quite impracticable and beggars the imagination as
to time, to consider that every military government or
military court should decide, one after the other, the
question of criminality of great organizations like these.
And, therefore, we have in the Charter adopted the procedure
that that preliminary question will be decided once and for
all by this Tribunal.

The fact that the organizations have been administratively
dissolved is irrelevant. What is important is, what was the
nature of the organizations when they did function? And that
is the issue which the Tribunal has to determine. And we
submit, and indeed say, that it is a clear implication, if
not indeed expressly within the words of Article 9, that it
must be at the trial of the individual defendants that the
question of this criminality should be decided, and we say
that, apart from considerations of practicality, the wording
of Article 9 is a clear guide against separation of these
issues as suggested by two or three of the defence counsel.

I only want to add one word about what has been said on the
argument on Article 10. Dr. Kubuschok made the point that
this procedure really acted

                                                  [Page 106]

entirely against the individual. There are at least two
answers: the first, which I have endeavoured to give as to
the legal concept behind the idea of a declaration, and the
second, the one which has been contested before the
Tribunal, as to the rights of defence. May I say that, in my
submission, membership in an organization is a question of
fact, and therefore these defences of duress, fraud or
mistake - to take three examples - must clearly be
permissible and good defences on that question of fact. The
third is that every document such as the Charter - the same
would apply to every piece of legislation - always
contemplates intelligent and reasonable administration in
carrying out its requirements, and it would be, in my
submission, idle to take the view that where you have a
permissive enactment like Article 10 - and it is clearly
permissive as to prosecution - intelligent administration
should prosecute every one who could be prosecuted under the

In our candid proverb, "hard cases make bad law", and in my
submission, it would be wrong to decide or interpret on an
extremely unlikely hard case.

I want, if I may, to say just one or two words on the
argument so interestingly put forward by Dr. Servatius and
mentioned a few moments ago by the learned French Judge.

In my submission there is no legislative functiori for this
Tribunal whatsoever. There is a definitely judicial
function, and I want to make it quite clear: I do not
qualify it by "quasi judicial" or any qualification at all.
It is a simple judicial duty. The first portion of that duty
is to define what is criminal. In my submission, as Mr.
Justice Jackson argued yesterday, that presents no
difficulties. It occurs in Article 9, three articles after
Article 6, and "criminal" in that context means an
organization whose aims, objects, methods or activities
involved the committing of the crimes set out in Article 6.

When "criminal" has been defined, it is a matter of judicial
weighing of evidence to decide whether there is evidence of
these crimes being committed by the organization or being
the aim or object of the organization as I have stated. But
I respectfully ask the Tribunal to hesitate long before it
accepts the argument of Dr. Servatius that this Tribunal
should decide the interpretation of "criminal" on its own a
priori basis, to use Dr. Servatius' own words, of politics
and ethics. That would be introducing a new, dangerous, and
unchartered factor into the trial. There is, in my
submission, a clear line of guidance for the judicial
approach, and nothing in the Charter to support the prima
facie unexpected idea that a body established as a tribunal
should delegate to itself legislative powers.

Again, if I may add just one word as to the conclusions
which Dr. Kubuschok drew on the question of criminality as a
ground for deciding the relevancy of evidence, his first
conclusion was that the organization in question, according
to its constitution or charter, did or did not have a
criminal aim or purpose.

I accept, of course, the test of aim and purpose, but I do
not accept the limitation as to charter or constitution. The
criminal aim or purpose may be shown by the declarations or
publications of the leaders of the organization, and also,
as I submitted, by its course of conduct in method and
action. I agree with Dr. Kubuschok that aim or purpose is
the first test, but I do not agree with his limitation as to
establishing it.

His second point was that crimes under Article 6 were not
committed within or in connection with the organization, or
were not committed continuously over a period. The first
part of that would seem fairly clear, that, if the crimes
were not committed within or in connection with the
organization, the organization is obviously in a very
favourable position. But I first answer the second part, by
saying that it does not come into the picture of this case,
that there is any instance of isolated crimes with regard to
every organization. The crimes alleged are, in, fact, spread
over the period alleged in the Indictment, but I suggest
that the adoption of such a criterion does not really help.
One comes back to the first point of Dr. Kubuschok, that
aims or purposes, as disclosed by declarations, methods, or
activities, are the primary and most important tests.

                                                  [Page 107]

Then, the third point that Dr. Kubuschok made was that an
appreciable number of members had no knowledge of the
criminal aims or of the continuous commission of crimes. I
endeavoured to stress, as did Mr. Justice Jackson, that the
prosecution's test is constructive knowledge; that is: ought
a reasonable person in the position of a member to have
known of these crimes? And that really is the answer, in my
respectful submission, to the relevancy of individual
knowledge of one particular member.

It is only too true that during the period under discussion
a very large number of people made a habit of sticking their
heads in the sand and endeavouring to abstain from acquiring
knowledge of things that were unpleasant. In my respectful
submission, that sort of conduct on the part of a member
would not help him at all, and the only answer to that is to
adopt the test which we have suggested: ought a person in
that position reasonably to have known of the commission of
the crimes?

Dr. Kubuschok's fourth point is, that an appreciable number
of members or certain independent groups joined the
organization under compulsion or illusion or superior
orders. Shortly we answer that by saying, that that is only
relevant to the defence of an individual member in the
subsequent proceedings, and, of course, it is only a defence
where he can show that he has taken no personal part in the
criminal acts.

Then, the last point which Dr. Kubuschok made was that an
appreciable number of members were honorary members. Again
we say that that is only relevant to the defence of the
individual member, and it does not really alter or increase
the defences open to him.

The only other point of Dr. Kubuschok's which I do think
requires mention is that, in considering how evidence could
be presented, he said that certain rights of defence are
universal. The first of these which he claimed was direct
verbal testimony, and he said that each individual defendant
should have this right. He then admitted that that was
practically impossible, and suggested as a solution that we
must typify, that is, that representatives of groups in the
various camps should make affidavits showing what percentage
took part in criminal actions, or knew about them.

I want to point out to the Tribunal that it is expressly
laid down in the Charter that members of the organization
are entitled to apply to the Tribunal for leave to be heard,
but the Tribunal shall have power to allow or reject the
application. As a point of construction, no less than of
sense, there would have been no object in giving the
Tribunal the power to reject the application if it were
implicit that everyone should have the right to be heard.

The answer is that the Tribunal has complete discretion to
decide what line and what course shall be taken to procure
the evidence. The prosecution, through Mr. Justice Jackson,
has indicated that it makes no objection to any reasonable
form of collecting relevant evidence. What the prosecution
objects to is evidence being tendered on the issue before
the Tribunal which is only relevant to the question of
individual innocence or guilt of the member.

My Lord, I could have dealt, and indeed was prepared to
deal, with a number of points raised by the other counsel
for the defence. I hope they will not think that it is any
disrespect to their arguments that I have not dealt with
them, but I know that the Tribunal wishes to ask certain
questions, and I do not want to trespass on their time. I
only want to deal with one point because it kills with one
stone two birds that have flown against our argument in this

It will be remembered that when I dealt with the SA
yesterday, Dr. Seidl - and I am sorry he is not here -
raised the question that the defendant Frank was not a
member of the SA; and Dr. Loeffler, in dealing with the SA
today, raised the question that its activities no doubt did
not really extend after 1939, and not importantly after the
purge in 1934.

                                                  [Page 108]

I find an interesting quotation from the semi-official
publication, "Das Archiv", for April 1942, and as it is very
short and deals with these points I venture to read it to
the Tribunal so that it may appear on the record. At Page 54
it says:-

  "SA Unit, Government General.
  At the order of the Chief of Staff of the SA, there took
  place the foundation of the SA Unit, Government General,
  whose command Governor General SA Obergruppenfuehrer Dr.
  Frank took over."

I only quote that to finish my argument, to show, as indeed
all the evidence shows, that with regard to the SA, no less
than any other of the organizations, the prosecution have
provided evidence of crimes reaching over the period which
they have stated.

I deliberately have cut out anything further that I might
say, my Lord, because I do not want to
shorten unduly the time in which the Tribunal may wish to
ask me any questions.

THE PRESIDENT: I think there is only one question that I
should like to ask you. As I understand it, you say that the
prosecution have proved facts from which one must conclude
that every reasonable person who joined any of these
organizations would know that they were criminal.


THE PRESIDENT: You would agree, would you not, that proof of
any fact which went to contradict the facts from which you
have presumed knowledge of criminality could be proved by
the defence?

SIR DAVID MAXWELL FYFE: Certainly. If the defence sought to
prove, to take an extreme example, that the conduct of the
SS with regard to, first of all, concentration camps and,
secondly, killing Jews and political commissars on the
Russian front, was done in such a way, despite the vast
territory over which these crimes have been proved to have
been carried on, was done in such a way that nobody knew
about it-if there was relevant evidence on that matter, then
they could call it, on the general point that it was not a
matter of imparted constructive knowledge, but of memory.

THE PRESIDENT: I only asked you that question because there
were certain observations by Mr. Justice Jackson which did
not seem altogether to accord with the answer which you have
just given.

SIR DAVID MAXWELL FYFE: I think that, as I understood Mr.
Justice Jackson, he was saying that it might not be relevant
to prove that one member did not know of the crimes, and I
thought that our two approaches really did fit in with each


THE TRIBUNAL (Mr. Biddle): I take it then, Sir David, that
you would say that evidence with respect to general
knowledge by any very substantial segment of an organization
would be relevant, would it not?

SIR DAVID MAXWELL FYFE: Well, I think it would be relevant
if it were not absurd. I mean, a disclaimer of knowledge of
certain acts may be so absurd that the Tribunal should not
take the time of to inquire into it.

MR. BIDDLE: That would apply to any evidence, of course. But
my point was: You have said that evidence with respect to
general knowledge over a whole organization would clearly be


MR. BIDDLE: And now I ask you whether that would be true
with respect to any substantial segment of an organization
such as the Waffen SS.

                                                  [Page 109]

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