The Nizkor Project: Remembering the Holocaust (Shoah)

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May I say one word about the mechanics of the position? I
thought that it would be convenient if the Tribunal and the
defence counsel had copies of these suggestions before I
address the Tribunal. In pursuance of this, copies have been
given to the members of the Tribunal, of course to the court
interpreters, and copies in German have been provided for
counsel for the organizations and also for counsel for each
of the individual defendants.

For the convenience of the Tribunal and of counsel, I have
circulated two addenda, which contain further references to
the transcript and documents on a number of points in the
original appendices. These addenda are compiled under the
numbers of paragraphs and, although they are in English,
should be readily usable by counsel for the defence. The
result is that there is the summary in appendices (a) and
(b) which I put in, and full reference in all the points in
the summary to the transcript and in some cases to

It is my intention not to read in full all the matters
contained in my appendix (a) and appendix (b) but to
indicate how they fit in with the conception of the

                                                   [Page 53]

prosecution on this aspect of the case. I shall, of course,
be only too ready to read any portions which may be
convenient to the Tribunal.

I think it would be best to start from the essential
probanda which Mr. Justice Jackson has indicated, and
perhaps the Tribunal will bear with me while I repeat his
five points.

1. The organization or group in question must be some
aggregation of persons (a) in some identifiable
relationship, (b) with a collective general purpose. That
was Mr. Justice Jackson's first test.

2. Membership in such organization must be generally
voluntary, although a minor proportion of involuntary
members will not affect the position.

3. The aims of the organizations must be criminal in the
sense that its objects included the performance of acts
denounced as crimes by Article 6 of the Charter.

4. The criminal aims or methods of the organization must
have been of such a character that a reasonable man would
have constructive knowledge of the organization which he was
joining; that is, that he ought to have known what type of
organization he was joining.

5. Some individual defendants, at least one, must have been
a member of the organization and must be convicted of some
act on the basis of which a declaration of the criminality
of the organization can be made.

I do not think that I can avoid applying these tests to each
of the organizations, but I conceive that this can be done
with brevity, and I therefore propose to deal with the
organization seriatim.

I take first the Reichsregierung. Under Appendix B of the
Indictment this group is defined as consisting of three

1. Members of the ordinary cabinet after 30th January, 1933.
The term "ordinary cabinet" is in turn used as meaning -
(a)Reich ministers, that is, heads of departments;
(b)Reich ministers without portfolio;
(c) State ministers acting as Reich
(d) Other officials entitled to take part in meetings of the

2. Members of the Council of Ministers for the Defence of
the Reich.

3. Members of the Secret Cabinet Council.

It is submitted that on the evidence placed before the
Tribunal there is no doubt that the first of Mr. Justice
Jackson's points, point one, is complied with in that there
is an identifiable relationship with a collective general
purpose, and that this organization is generally voluntary
within point two.

The aims of the organization are set out in paragraph four
of Section A of my Appendix A and the broad submission of
the prosecution is shown in paragraph two. Perhaps as that
is short, I might be allowed to read it:

  "Owing to their legislative powers and functions the
  members of the Reichsregierung gave statutory effect to
  the policy of the Nazi conspirators, and collectively
  formed a combination of persons carrying out the
  executive and administrative decisions of the Nazi

The prosecution apply that general submission to the crimes
constituted by Article 6 of the Charter in paragraphs five,
six, seven and eight of that appendix.

 If the Tribunal would like me to deal further with these
paragraphs I should be pleased to read and comment on any
that are desired.

When it is remembered that the Reichsregierung possesses
policy-making, legislative, administrative, and executive
powers and functions, and that many of its members held at
the same time important positions in the Party and in
governmental activities outside the cabinet, enormous
political power was concentrated in this group.

As I said, the Reichsregierung implemented and gave
statutory effect to the programme of the conspirators.

If the Tribunal will be good enough to turn to my Appendix B
they will see that seventeen of the twenty-one defendants
before the Court were members of the

                                                   [Page 54]

Reichsregierung. The prosecution have submitted an enormous
body of evidence against these seventeen defendants, and
they now submit that it is sufficient to say that these
seventeen defendants should be convicted under each count of
the Indictment, and therefore under each portion of Article
6 of the Charter; and that they form the connected
defendants with the Reichsregierung, under Mr. Justice
Jackson's point five.

The acts which I have mentioned and which are set out in
paragraph four of my Appendix A and the other paragraphs are
of such a character that no one in a ministerial capacity
could fail to have constructive knowledge of their nature
and intent.

I now pass to the Leadership Corps of the Nazi Party. Mr.
Justice Jackson has indicated that the conspirators required
wide instruments of support. Hitler boasted of the complete
domination of the Reich and of its institutions and of its
organizations, internal and external, by the National
Socialist Party.

In the Nazi Party, based on the Fuehrer principle, its
policies and operations were determined not by the
membership as a whole but by the "Corps of Bearers of
Sovereignty" and their staff. These leaders were all
political deputies obliged to support and carry out the
doctrines of the Party.

At every level regular and frequent conferences were held to
discuss questions of policy and working measures. The
leaders held the Party together, but they also kept the
entire populace firmly in the grip of the conspirators
through the control of the descending hierarchy of leaders.

The prosecution submit that all these leaders are within the
organization which they claim to be criminal, and as Mr.
Justice Jackson pointed out, the staffs of the Reichsleiter,
Gauleiter, and Kreisleiter, which are set out in the volumes
of the National Socialist Organization Yearbook as being in
these positions.

The Tribunal will note that we have omitted the staffs of
the more junior Hoheitstrager, as Mr. Justice Jackson has
pointed out. On that the prosecution again says that there
is no doubt that points one and two of Mr. Justice Jackson's
criteria are complied with, and they indicate in paragraphs
one, two, three, and four of Section B of my Appendix A the
elements of criminality; they indicate in my Appendix B the
defendants who are involved; and in a later portion of
Appendix B they submit that from the position of these
defendants as members of the Leadership Corps and in the
government and the Nazi Party, and further, from the close
inter-connection between the government of the Reich and the
Party, it is clear that the Leadership Corps is a criminal
organization connected with all the crimes charged against
all the defendants in the Indictment, including those who
were in the Leadership Corps, and elaborated before the
Tribunal in the individual presentations.

The Nazi Party is the core of the conspiracy and criminality
alleged, and the defendants are the core of the Nazi Party.
Again, the prosecution say that no one living in Germany and
taking part in the management, which in this case means
literally the ordering of the Nazi Party, could fail to have
constructive knowledge of the intentions of its leaders and
the methods of carrying these out. This inner circle is in a
very different position from even the best-informed opinion
outside Germany.

I now pass to the SS, including the SD. The prosecution
respectfully reminds the Tribunal of the statements
regarding the composition of the SS and its history, set out
shortly in Appendix B of the Indictment, on Page 36 of the
English text. The prosecution stands by these statements,
which it submits are clear. I do not. intend to read them at
the present moment.

The Tribunal has heard the evidence in the case regarding
the SS (Pages 127 - 181, Part 3) and the case regarding
concentration camps (Pages 360 - 378, Part 2) and also the
evidence as to the defendant Kaltenbrunner, of which the
reference is given in the addendum. They have also heard in
the cases of the French and Soviet delegations additional
mountains of evidence with regard to the SS. It is submitted

                                                   [Page 55]

that there is no difficulty on the first three of Mr.
Justice Jackson's points, and that the criminality of the SS
has been proved several times over.

On the fourth point I venture to submit the submission in
paragraph 4 of Section C of my Appendix A, that the crimes
of the SS were committed, firstly, on such a vast scale, and
secondly, over such a vast area that the criminal aims and
methods of the SS, which have staggered humanity since this
trial opened, must have been known to its members. It was
difficult to drive from one city of Germany to another
without passing near to a concentration camp, and every
concentration camp had its SS crimes. In my Appendix B the
Tribunal will find the members of the SS who are defendants
set out, and in the second part, a summary of the crimes of
the defendant Kaltenbrunner. The prosecution gives to him a
particularly sinister significance, while relying also on
the crimes of the other defendants who were members.

DR. PANNENBECKER (Counsel for defendant Frick): May I point
out that in the appendix the defendant Frick has apparently
been included by mistake; among the offices held by the
defendant Frick this is not listed as one of them.

THE PRESIDENT: What do you mean? Do you mean not a member of
the SS?

DR. PANNENBECKER: The appendix says that Frick was a member
of the SS. This is not the case and he has also made a
statement to this effect in his affidavit.

DR. SEIDL (counsel for defendant Frank): In the appendix
just read out by the prosecutor the defendant Frank too is
included as a member of the SS. Already earlier in the trial
the American prosecutor submitted Document 2979-PS as
Exhibit USA 7. This document shows that at no time was Frank
a member of the SS or, as is asserted in the Indictment, an
SS General.

Furthermore, I should like to point out to the Tribunal that
several months ago, when the Indictment was lodged against
the SS as a criminal organization, the name of the defendant
Doctor Frank was not mentioned. May I therefore take it that
in the drawing up of this appendix a mistake has been made?

DR. THOMA (counsel for defendant Rosenberg): I should like
to make the same statement as that made by my colleague
Doctor Seidl on behalf of the defendant Rosenberg. In
Appendix A which lists the indicted organisations Rosenberg
is shown as a member of the SA. He was never a member of the
SA, and he has already made a statement to this effect in
the course of an interrogation.

SIR DAVID MAXWELL FYFE: The defendants will have the
opportunity of disproving these allegations, which are all
contained in the Indictment; but in view of what has been
said, I shall personally check the matter myself.

Then I proceed to deal with the Gestapo. Again the Tribunal
will find the construction and history of the Gestapo set
out in Appendix B of the Indictment, and the criminality
alleged is set out in paragraphs 1, 2 and 3 of Section D of
my appendix. The second addendum, the Tribunal may care to
note, gives the most detailed references to each of these
alleged acts of criminality. The prosecution submits that
from these points which are mentioned it is clear that the
first four of Mr. Justice Jackson's points are complied
with. The provisions of Articles 7 and 8 of the Charter, in
the submission of the prosecution, make it impossible for
the defence to rely on the official background of the
Gestapo, and therefore, as I say, we submit that this
clearly comes within the first four of Mr. Justice Jackson's
points. If the Tribunal will refer to my Appendix B they
will see that the defendants Goering, Frick and
Kaltenbrunner are alleged to be members, and in the later
part of that appendix we allege, as is the fact, that the
crimes of these defendants were committed in their
capacities as responsible chiefs of this organization.

Then we come to the SA. I again refer to paragraphs 1 and 2
of Section E of my Appendix A, and I ask the Tribunal to
note that apart from the correct

                                                   [Page 56]

statement of its phases and periods of activity, each of the
elements of criminality contained references to the
transcript, where these matters are proved. I remind the
Tribunal of Mr. Justice Jackson's statement, which shows
that the prosecution have omitted all connected bodies, even
including those who had only been members of the reserve,
about which there can be any argument, even a sentimental
argument, as to their full connection.

It might be convenient if I reminded the Tribunal of these

THE PRESIDENT: We will adjourn now.

(A recess was taken until 1400 hours.)

SIR DAVID MAXWELL FYFE: If the Tribunal please, before the
Tribunal adjourned I was about to mention again the groups
on the fringe of the SA, which the prosecution did not seek
to be included in the organizations.

First, wearers of the SA Sports Badge. The Tribunal may
remember that Colonel Storey explained that they were not
strictly members. He wanted to have that point made quite

Secondly, SA Wehrmannschaften, who were internal defence or
home guard units controlled by the SA, but not members of
the SA.

Thirdly, SA members who were never in any part of the SA
other than the reserve.

Fourthly, the NSDKV, the National Socialist League for
Disabled War Veterans, who were apparently incorporated in
the SA, but from the names that have been given, and the
membership, we do not ask for their inclusion.

In Appendix B the Tribunal will find the eight defendants
alleged to be connected with the SA, and it is alleged by
the prosecution that the connection of the SA with the
conspiracy was so intimate that all the acts of the
defendant Goering would justify the declaration asked for.

I now pass to the sixth and last group or organization, the
General Staff and High Command of the German Armed Forces.
As in this case the prosecution has drawn an arbitrary line,
I may perhaps be allowed to recall briefly its constitution.

If the Tribunal will be good enough to look at Appendix B of
the Indictment, under this heading, Page 37 of the English
text, they will see that the first nine positions enumerated
are special command or chief of staff positions.

There were 22 holders of these positions between February
1938, and May 1945, of whom 18 are living. The tenth
position, of Oberbefehlshaber, includes 110 individual
officers who held it. The whole group varied from a
membership of 20 at the beginning of the war to about 50 in
1944 or 1945, that is, at any one time.

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