The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/22

After a closed session of the Tribunal on 11th December,
1945, in which counsel for the indicted organizations also
took part, the Tribunal by a ruling of 17th December, 1945 -
of which I received a German translation only after a few
days - directed that the respective counsel, that is,
counsel for the organizations, should represent only the
indicted groups and organizations and not individual

Not until this date was the extent of my duties stated
unambiguously and defined.

THE PRESIDENT: The Tribunal would like to know what your
application now is. The object of this session is to have an
argument from counsel for the prosecution, and counsel for
the defence, in order that the legal questions with
reference to these organizations should be clear, and what
your personal experience during November and December of
1945 has to do with it the Tribunal is unable to see.

DR. BABEL: Mr. President, before I started reading this
motion I pointed out that as early as the 15th of January of
this year I made a motion to separate the procedure, and to
my knowledge no ruling has yet been given. I have tried to
repeat in part the reasons for this motion which I made at
the time. If the Court does not think it desirable or
necessary, I shall refrain from doing so.

                                                   [Page 88]

THE PRESIDENT: I do not see any relevance in what you have
been reading to us now, either to the question of whether
there should be a separate trial or to any other questions
with reference to the criminal organizations.

DR. BABEL: Mr. President, under these circumstances I shall
not read those further arguments, which may be known to the
Tribunal from my written motion, and I shall come to the
conclusion of what I still wish to say.

THE PRESIDENT: Dr. Babel, the Court will, of course,
consider the suggestion which has been made, I think, by
other counsel for the organizations as well as the
suggestion which I understand you are now making, that it is
necessary to have a separate trial. The Tribunal will
consider that. But what you have been saying to us does not
appear to me to have any relevance to that point.

DR. BABEL: Mr. President, in my former motion I merely
wanted to point out the difficulties I had - since I was
still alone and had no assistance - before I was in a
position to devote myself to my real assignment; for that
reason also, in my opinion, my motion for separating the
trial was well founded at that time. Part, or the greater
part, of what I said then has been repeated now. What I have
just read now and the remainder of my motion might have more
significance today, but I shall refrain from reading it
since the question of the separation of the trial has
already been brought up and argued by others. For the rest,
I agree with the arguments brought forward by my colleagues
in this regard. In this connection I should like to point
out that on 19th January, 1946, I put forward a motion to be
relieved of the defence of the SD, because of conflicting

I believe I ought to call this to your attention as I do not
plead today for the SD, because I have been waiting for a
ruling on my motion. I reserve for myself the right to make
further statements after I receive a copy of the record of
28th February, in particular on the question of the
membership of individuals and groups of persons in the SS,
on the definition of the lines of demarcation between the SS
and the government, on limitations as to periods and
organizations, on the question of voluntary membership, on
limitation of responsibility for other reasons according to
criminal law, and on the jurisdiction of the SS Courts.

In view of the tremendous amount of work which I have had to
do so far, I have to this date not yet been able to take a
stand on all these points. I wish to state that the
suggestions made by the prosecution, and several of the
defence counsel, as to the presentation of evidence, seem
untenable to me. They would entail a considerable limitation
of the defence. To carry them out seems to be impossible
also for reasons of time.

This concludes my argument.

THE PRESIDENT: The Tribunal will now adjourn.

(A recess was taken until 1400 hours.)

THE PRESIDENT The Tribunal has decided to alter the order of
procedure and they will therefore not sit in open session
tomorrow, but sit in closed session tomorrow, Saturday, and
sit on Monday to hear the applications for witnesses and
documents by the next four defendants in order.

Now, there is another counsel for the organizations to be
heard, is there not?

DR LATERNSER: (counsel for the General Staff and the OKW):
The main subject of the discussion which, by request of the
Tribunal, has taken place today and yesterday, is the
question as to what is relevant evidence in the case against
the indicted organizations.

As a preliminary, the concept of the criminal organization
in particular must be clarified. Consequently, it is not the
task of counsel for the organization to plead in detail;
that should be reserved for the final address by defence
counsel; but rather the subject of discussion is definitely
limited, as far as the

                                                   [Page 89]

defence is concerned, to the above-mentioned question of the
relevancy of evidence, and also to certain fundamental
issues which must be touched upon in order to judge the
relevancy of such evidence.

According to the sequence provided by the Indictment, our
colleague, Dr. Kubuschok, spoke first, as defence counsel
for the Reich Government. In his address he dealt with the
general issues in compliance with Point No. 1 of the
decision of the Tribunal of 14th January, 1946. In order to
avoid unnecessary repetition, I should like to make the
legal arguments of my colleague Kubuschok, in their full
extent, part of my own argument. At the same time I submit
the request that the Tribunal pay particular attention to
the contents of those arguments presented yesterday.

With regard to the definition of the concept "criminal
organization," I should like to make a few short remarks and
additional statements. It is obviously a well-considered
provision of the Charter that the Tribunal can declare the
indicted organizations criminal; it is thus not obliged to
do so, but can exercise its free and impartial judgement.

If the Tribunal comes to the conclusion that the declaration
of the group as criminal can or has to lead to impossible,
untenable, and unjust consequences, then the rejection of
the prosecution's demand would as a matter of course be

It has already been pointed out by those who have just
spoken, what grave legal consequences would result as far as
the members are concerned, from a declaration of the
criminality of the groups, and how the undoubtedly vast
number of innocent members would also be affected by that
declaration. As far as these consequences for the members
are concerned, it cannot be emphasized strongly enough, that
all the members of the groups and organizations will be
affected directly, by a declaration of criminality, since by
the verdict of the Tribunal it would irrefutably be
established that they were accused of a crime, namely, the
crime of having belonged to a group or organization which
has been declared criminal. That this membership is a crime
already, follows clearly from Articles 10 and 11 of the
Charter. In Article 10 it is stated that the competent
courts of the individual occupation zones have the right to
put all members on trial because of their membership in
groups or organizations which have been declared criminal.

It is further enacted that in those trials the criminal
nature of the group or organization shall not be questioned.
Thus, the members can be indicted because of membership in
the group or organization, and if every indictment before a
court can deal only with a crime, then it is already
established that membership in the group or organization is
a crime. Furthermore, in Article 11 of the Charter,
membership in a group or organization declared criminal is
specifically designated a crime. That follows from the very
words of the Article, which reads:-

   " . . .with a crime other than of membership in a
   criminal group or organization..."

In the same way, in the Law of 20th December, 1945, issued
to implement the Charter, membership in a group or
organization declared criminal is specifically declared a
crime. Consequently, the finding of the criminal character
of the group or organization by the Tribunal will have the
immediate effect that all members, because of their
membership in the group or organization, have committed a
crime, and this must necessarily lead to untenable

It is not correct to say that these members can exculpate
themselves in the subsequent trials before the individual
military courts. If mere membership in the organization is
defined as a crime, they can take exception to the charge of
guilt only by declaring that they were not members of the
group or organization.

If Mr. Justice Jackson is of the opinion that in the
subsequent trials they could plead that they had become
members under duress or by fraud, the admissibility of this
plea nevertheless seems to be highly questionable.

                                                   [Page 90]

Mr. Justice Jackson himself pointed out that a plea of
personal or economic disadvantages cannot serve as grounds
for duress. What other kind of duress could be considered
relevant? According to German criminal law, only physical
coercion would be left for consideration, and that only for
the period of its duration. In this case also, fear of
personal or economic disadvantage is no grounds for
exculpation as far as remaining in the group or organization
later on is concerned.

Thus a member of a group or organization declared criminal
has, in the subsequent trial, only the possibility of
pleading certain extenuating circumstances which might
influence the degree of penalty. The question is now
whether, according to the principles of justice, these
inevitable consequences are tolerable; as far as innocent
members are concerned, this question can be definitely
answered only in the negative.

Mr. Justice Jackson is further of the opinion that there
probably are no innocent members of the organizations
concerned, because it is simply incomprehensible to a sound
intelligence that anyone joined the indicted groups or
organizations without having known from the very beginning,
or at least very soon after, what aims and methods these
groups and organizations were pursuing.

This point of view may appear comprehensible to the
retrospective observer after the crimes charged to the
groups and organizations have collectively been brought to
light. That the mental attitude of the members to the aims
and tasks was or could have been entirely different at that
time, cannot be doubted by anyone.

If one were to subscribe to Mr. Justice Jackson's
interpretation, then the provision of Article 9 of the
Charter providing for a hearing of members on the question
of the criminal character of the organizations would make no
sense at all. It would then be entirely superfluous to admit
any sort of evidence in respect to this, and it would
furthermore be unnecessary to discuss the criminal
character, as the Tribunal itself has suggested. If we
follow the prosecutor's line of thought that, according to
sound common-sense, it is obvious that all the members took
part in the crimes mentioned in Article 6 of the Charter,
then the provisions regarding the Common Plan and Conspiracy
would suffice altogether as grounds for prosecuting and
punishing these members who, without exception, are to be
considered guilty. In this case, the structure of the
declaration of criminality and the stipulation of its
consequences would in no way have been necessary.

From the following deliberation it is to be inferred that
the declaration of the criminality of the organization is
not only unnecessary, but can be dispensed with altogether.

Mr. Justice Jackson declared that, of course, no one
intended to indict the innumerable members of the groups and
organizations, which would result in a flood of trials which
could not possibly be dealt with in one generation. What
will be done is to seek out and find only those who are
actually guilty and have them brought to trial.

Thus it is not in any way necessary to create such a large
circle of members through the declaration of criminality and
to select the guilty from this circle. This selection can
take place without creating this circle. That in a group or
organization of many members there were obviously a number
of innocent members is a fact of common experience which
cannot be disputed, and this is taken into consideration not
only by the Charter, but also by the prosecution, in that
they want to exempt from one of the organizations the
category of those with low-grade routine tasks, obviously
because of the conviction that these had nothing to do with
crimes, for otherwise they would have been members of or
participants in the criminal conspiracy.

Besides this category, however, a number of other members
come into consideration, whom one cannot speak of as guilty
in the legal sense of the term, for instance, those people
who did not give any thought at all to the aims of the
group. All these people would, of necessity, not only be
dishonoured by a declaration of the criminality of the group
or organization, but, if indicted, would also be punishable

                                                   [Page 91]

because of mere membership. Incidentally, it might be
mentioned that, eventually, their economic existence would
be menaced or destroyed because of their membership in the
group or organization and the defamation brought about by
the declaration of criminality.

But again it must be asked whether all these consequences
have been weighed and can be justified in view of the basic
principle of all criminal law systems, according to which
only the guilty are to be punished, and in view of the
principle of substantive justice. That ought to be answered
in the negative all the more if these members, who would
necessarily be affected by the verdict of the Tribunal, were
not granted any legal hearing in this trial.

It has already been pointed out that granting a legal
hearing to the vast majority of the members is unfeasible
for technical reasons. Thus the unique situation arises that
the Tribunal would pass a verdict on all those members
without knowing whether or not numerous innocent members
would be affected thereby.

Mr. Justice Jackson further pointed out that the issue under
dispute is nothing new, but can be found in the penal codes
of all other States and in particular also in Germany. This
view likewise can in no wise be supported. The German laws
and precedents quoted are of a character which is entirely
different from the structure of the Charter.

In Germany, as in almost all other States, the punishment of
groups and organizations is not known at all, only the
punishment of individuals is known. No German judgement has
yet been passed by which a group or organization as such was
subjected to penalty or was declared criminal. It is quite
possible, however, that in the trials against members of
criminal organizations, the criminal character of the
organization was stated in the argument. This statement,
however, had effect only on the convicted members and not on
other members who were neither indicted nor convicted.

The quoted provisions of Articles 128 and 129 of the German
Penal Code are provisions which corroborate exactly the view
of the defence, because they threaten with penalties only
the participants in an illegal association, and not the
association itself. Also, the French laws quoted deal merely
with the threat of punishment for participation and
membership in certain associations with punishable objects.
A possibility for declaring the association itself criminal
is not to be found in these legal sources either.

The French prosecutor quoted, first of all, Articles 265 and
266 of the French Penal Code.

The first provision forbids the forming of associations with
a punishable object the second subjects only the
participants to penalty. Likewise, the French law concerning
Armed Groups and Private Militia of 10th January, 1936,
provides only for the punishment of the participants. The
same is true of the other law quoted, that of 26th August,
1944, which provides only for individual responsibility.
None of the above-mentioned laws allows the punishment of
organizations. Consequently, they can support the legal view
of the defence only.

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