The Nizkor Project: Remembering the Holocaust (Shoah)

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SIR DAVID MAXWELL FYFE: I am trying to relate it to the
practical position. That is where I find it very difficult.

Now, to take your example, it is difficult to imagine. Let
us take four divisions that were very well known: the
Totenkopf, the Polizei, Das Reich, or the 12th Panzer
Division. I should have thought that, as a matter of
discretion, if it were sought to show that these divisions,
about which there is so much evidence as to their
participation in crime, did not know of the crimes, the
Tribunal would be right in rejecting that argument.

MR. BIDDLE: The question would come up more as to whether
the acts of the members of certain divisions were known
generally throughout the whole Waffen SS, would it not?

SIR DAVID MAXWELL FYFE: With the greatest respect, I find it
very difficult to see how the knowledge or absence of
knowledge of a particular division in the Waffen SS could
affect the question of criminality of the SS as a whole.

MR. BIDDLE: Again, I am not asking you as to knowledge in a
particular division; I am asking you as to general
knowledge, throughout the entire Waffen SS, of the acts of a
particular unit.

SIR DAVID MAXWELL FYFE: If some one is prepared to say, "I
knew every division of the Waffen SS, and in my opinion no
one in the Waffen SS had any knowledge or had any
opportunity of knowing of the crimes," then the evidence
would be admissible. Its weight would be so negligible that
I should submit it would not detain the Tribunal long.

But I concede that if some one is prepared, laying the
proper ground for his evidence, to say, "I can speak; I have
the grounds for and the opportunity of speaking on the
general position," then I do not see how the Tribunal could
exclude it.

MR. BIDDLE: The matter is very practical because we have to
advise counsel for the defendants what material they can
introduce, and to do that very soon.


MR. BIDDLE: Now let me ask you a few other questions.

On what basis, Sir David, do you contend that the Reich
Cabinet was a criminal organization as of 30th January,
1933, when, if I remember correctly, there were only three
members of the Nazi Party who were in the Cabinet: Goering,
Hitler, and Frick. Do you think that if three out of a very
much larger number, some twenty odd, could be said to be
part of a criminal organization, that makes the entire
Cabinet criminal?

SIR DAVID MAXWELL FYFE: Certainly, on the facts. It must be
remembered that Hitler had refused to take office as Vice-
Chancellor during the months before that, before the date
that you put to me. He had refused on the ground that, as
Vice-Chancellor, he would not be in a position to carry out
his Party programme. On that basis the defendant von Papen
and Hitler negotiated, and Hitler came into power on 30th

It is the case for the prosecution that those who formed
part of that Cabinet knew that they were forming part of a
cabinet in which Hitler was going to work out his programme,
as has been declared on so many occasions. That is the first

Secondly, it is the case for the prosecution that the
defendant von Papen did join in introducing the Nazi
conspirators into the Government with that knowledge and
with the purpose of letting them have their way in Germany.

The same must apply, although it has not been investigated
to the same extent, because they are not defendants, to the
industrialists and the Party, who were acting with them in
the Cabinet. They must be taken to have known, just as
Gustav Krupp knew and supported, just as Kurt von Schroeder
knew and supported the aims of the Nazis whom they
introduced and co-operated with in the government.

                                                  [Page 110]

Thirdly, the personalities of the Nazis in the government -
Hitler himself, and the defendants Goering, Frick, and Dr.
Goebbels, who I think became Propaganda Minister either at
the same time or very shortly afterwards - show that these
people, they have shown it by their acts, were not persons
to take second place. They introduced at once the
Fuehrerprinzip into operation in the States, and these other
people in the Cabinet at that time accepted the
Fuehrerprinzip and united in placing Hitler and the
defendant Goering, and the other conspirators, in the
position of power and authority which enabled them to carry
out their monstrous crimes that are charged against them.

I will give you one other reference.

It was within a few months of that period that the defendant
Schacht became Plenipotentiary for War Economy and began the
preparations for the economic side of the creation of
Germany's war potential.

For all these reasons I submit that the actions of Reich
Cabinet at that date were deliberate. The same applies to
the defendant von Neurath; it is the whole case of the
prosecution, as to the case against von Neurath, that he
sold his respectability and reputation to the Nazis in order
to help them buy with that reputation and respectability a
position of power in Germany, with the conservative circles
in Germany and with the diplomatic circles in Europe with
whom he came in touch - for all these reasons, your Honour,
I submit that the Reichsregierung at that time was
thoroughly infected with the criminality which we suggest in
this case.

MR. BIDDLE: In relation to the Political Leadership, let me
ask you this, Sir David:-

In your opinion, would it be necessary to establish the
responsibility of political leaders of lower grades to show
that, as a group, they were informed of plans to wage
aggressive war or to commit War Crimes or Crimes Against
Humanity? In other words, I take it there is some obligation
to show that information. Does that rest simply on the fact
that these crimes were being perpetrated, or is there any
evidence of that information?

SIR DAVID MAXWELL FYFE: There is evidence, and if I might
just indicate the kind of evidence there is - on the first
stage of the acquisition of totalitarian control in Germany,
which is the first stage in the conspiracy, that is, apart
from the Party Programme, there are the extracts from the
"Hoheitstrager Magazine"; you remember, Hoheitstrager are
all the political leaders. On the anti-Semitic part of that
there are documents, which are Exhibits USA 240 and 332,
which are shown in the record at Pages 37 and 52 (Part 3).
On the question of war crimes against Allied airmen you will
remember that a document was circulated to Reichsleiter,
Gauleiter, and Kreisleiter, with instructions that
Ortsgruppenleiter were to be informed verbally with regard
to the lynching of Allied airmen. That is Document PS-057,
shown in the transcript at Page 39 (Part 3). And that the
hint was taken by at least one Gauleiter is shown by
Document L-154, Exhibit USA 325, at Page 40 (Part 3).

Then, there is a Himmler order to senior SS officers, to be
passed verbally to the Gauleiter, that the police are not to
interfere in the clashes between Germans and aviators. That
is Document R-110, Exhibit USA 333, shown at Page 38 (Part
3). Then there is a speech by Goebbels inciting the people
to murder Allied airmen, which is shown at Page 39 (Part 3).
Similarly, with regard to foreign labour, there is a
telegram from Rosenberg to the Gauleiter asking them not to
interfere with the confiscation of certain companies and

There is Jodl's lecture to Reichsleiter and Gauleiter at a
later stage. There is an undated letter from Bormann to all
Reichsleiter and Gauleiter, informing them that the OKW had
instructed guards to enforce obedience of prisoners of war
refusing to obey orders, if necessary, with weapons.

                                                  [Page 111]

MR. BIDDLE: Sir David, if I may interrupt you for a moment.
I was familiar with the evidence with respect to the
Gauleiter. and Reichsleiter. My question, you will remember,
was addressed to the lower levels, the Blockleiter.

SIR DAVID MAXWELL FYFE: Well, I think one can summarize it
that even as far as lower levels are concerned you have the
four points: You have Mein Kampf, the "Party Programme,"
"Der Hoheitstrager," and the fact that conferences were
constantly held throughout the organization.

As I say, I have dealt with the evidence on the Jews, the
lynching of Allied airmen, and I think I mentioned the
letter from Bormann to the Reichsleiter, Gauleiter, and
Kreisleiter about assisting in increasing the output of
prisoners of war. And there is an instruction from Bormann
down to the Kreisleiter about the burial of Russian
prisoners of war. There is a decree for insuring the output
of foreign workers that goes down towards the Gruppenleiter.

All these matters are in evidence, and we submit that there
is particular evidence on practically every point. And on
the general point, as I said, you have these publications,
coupled with the evidence that conferences were held; apart
from the general Fuehrerprinzip which would, and did, make
the Zellenleiter and the Blockleiter the final weapon in
order to ensure that the people acted in accordance with the
leader's wishes.

MR. BIDDLE: Let me ask you just two questions, and then I
will finish with regard to the SA. Would you say that a
member of the SA who had joined, let us say, in 1921, and
resigned the next year, was guilty of conspiring to wage
aggressive war and was guilty of war crimes?

SIR DAVID MAXWELL FYFE: Yes, in this sense. If I may recall,
I answered a question that you were good enough to put to me
a day or two ago as to when the conspiracy started. A man
who took an active and voluntary part as a member of the SA
in 1921 certainly, in supporting the Nazi Party, was
supporting the published programme of the Party which had
the aims which you have just put to me.

That is certainly put clearly in Article 2 of the Party aim
as the getting rid of the Dictate of Versailles, and the
Anschluss, getting the Germans back to the Reich, which, of
course, is only a polite way of saying destroying Austria
and Czechoslovakia.

Therefore, that man had these aims in view.

With regard to war crimes, I respectfully repeat the answer
that I gave to you the other day, that it was an essential
tenet of the Nazi Party that they should disregard the life
and safety of any other people who stood in the way of the
securing of their ambitions. A person who deliberately joins
an organization with that aim, and with that aim getting
more and more clearly related to practical problems as week
succeeded week, was taking part in a first essential step of
involving mankind in the miseries that we have seen; because
it is that tenet, applied to every facet of human life and
human suffering, which has caused the crimes which this
Tribunal is investigating.

MR. BIDDLE: Well, I can see how you might say that with
respect to conspiracy in war crimes, but I want to be
perfectly clear also that you say, on the substantive crime
of committing war crimes, that a man joining the SA in 1921
and leaving in 1922 would have committed those war crimes in
the beginning of 1939.

SIR DAVID MAXWELL FYFE: If you put to me the substantive war
crimes, I respectfully remind you that under Article 6 the
last words are:-

  "Leaders, organizers, instigators and accomplices
  participating in the formulation or execution of a common
  plan or conspiracy to commit any of the foregoing crimes
  are responsible for all acts performed by any person in
  the execution of such a plan."

Under the Charter, in my respectful submission, that is
enough to make them responsible for the crimes.

                                                  [Page 112]

MR. BIDDLE: Now only one other question. What do you contend
was the function of the SA after the Roehm purge?

SIR DAVID MAXWELL FYFE: The function was still to support
all Nazi manifestations in the life of Germany. You remember
that Dr. Loeffler was careful to except - very frankly and
fairly he excepted 10th November, 1938. The SA - and I gave
another example how they were formed in the Government
General - we have also given examples, which I think you
will find in my Appendix, of the participation - limited
participation, but still a participation - in the War Crimes
and Crimes Against Humanity.

But the main point of the SA after that time was to show
that here were three million people who had come into the
organization, which had provided the force to bring the
Nazis into power; and it had the forceful size needed to
bring the Nazis into power in those days. They were then
joined by two and a half million people, which brought their
numbers up at that time to a very high figure. They went
down again later on, but they were high in 1939, and they
provided a great immoral force behind the Nazi Party. They
provided strong support and were ready on all occasions;
whenever a demonstration had to be staged, the SA were there
to give their support. They were an essential instrument for
maintaining the Nazi control over the German Reich.

MR. BIDDLE: I take it, then, that the function, in your
opinion, did not change in substance after the purge? Would
you say that?

SIR DAVID MAXWELL FYFE: The aim did not change. It did not
need to do half as much, because, of course, by the end of
1933 all the other political parties were broken. Part of
the SA's original task, as I think Dr. Loeffler put it, had
been to safeguard the defendant Goering when he was making a
speech - I should have put it that it was to prevent the
other people from having a free run when they made speeches
- and to deal with the clashes between the various groups.
That was unnecessary, because all political opposition had
been destroyed. Therefore they became rather - I forget the
exact term - a sort of cheer-leaders or a collection of
people who would always be ready to give vociferous support.

You must have heard, your Honour, of the meetings coming
over the wireless with regulated cheers. It became more
supporting, rather than dealing with opposition, but
essentially the aim was the same, to keep the grip.

THE PRESIDENT: Dr. Dix, it is now nearly quarter past five.
Do you think that this discussion can be closed this evening
before six o'clock?

DR. DIX (counsel for defendant Schacht): Mr. President, I
believe I can finish in five minutes.

THE PRESIDENT: All right. Do the other prosecutors wish to
add anything?

GENERAL RUDENKO: I would like to make a few short remarks,
Mr. President.

THE PRESIDENT: How long do you think you will be, General
Rudenko ?

GENERAL RUDENKO: I think about ten minutes; no more.

THE PRESIDENT: Does the French prosecutor wish to add

M. CHAMPETIER DE RIBES: I have nothing to add.

THE PRESIDENT: Dr. Dix, what I really want to know is
whether there is any prospect of our finishing this
discussion tonight. - General Rudenko wishes to speak for
about ten minutes, and if the defendants' counsel - of
course, you will understand that a discussion of this sort,
an argument of this sort, cannot go on forever; and in the
ordinary course one hears counsel on one side and counsel on
the other side, and then a reply; one does not go on after
that. Do you know how many of the defendants' counsel want
to speak?

                                                  [Page 113]

DR. DIX: Mr. President, I know that.

THE PRESIDENT: I think probably the best thing would be if
we were to adjourn now and to sit in open session tomorrow,
and then we shall probably be able to conclude this argument
in about an hour tomorrow. Do you agree with that, General


THE PRESIDENT: Do defendants' counsel think we shall be able
to conclude it in about an hour tomorrow morning?

(Several counsel nodded affirmatively.)

THE PRESIDENT: Very well; we will adjourn now and sit at 10
o'clock tomorrow morning.

(The Tribunal adjourned until 2nd March, 1946 at 1000 hours.)

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