The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2001/02/21

                                              [Day 188]



SIR DAVID MAXWELL FYFE: My Lord, might I mention the
letter from General Warlimont which we discussed
yesterday in connection with Dr. Laternser's
application to call Colonel Buerker. My Lord, the
prosecution had the opportunity of considering the
letter and they are quite prepared to admit that the
part of the letter which relates to Colonel Buerker,
that is, section "A" of the letter, contains what
Colonel Buerker would say if he were called. We are
quite prepared to make the admission or stipulation
which your Lordship suggested yesterday. My Lord, the
other parts of the letter, "B" and "C," relate to a
statement of General Warlimont himself and a statement
of a Major Meier. Dr. Laternser has not made any
application with regard to these parts and he is quite
prepared that they should not be read. Dr. Laternser is
prepared to agree with our suggestion that the first
part relating to Colonel Buerker be treated as the
evidence that Colonel Buerker would have given if he
were called.

THE PRESIDENT: Then, perhaps, you will read section "A"
of the letter?

DR. LATERNSER: I shall read from a letter from General

"Nuremberg, 23rd August, 1946. To Attorney Dr. H.

I shall leave out part of it and I begin at:

"(A) About ten to fourteen days ago, early in the
morning, there appeared before me, in the general camp
at Dachau, Colonel of the General Staff of the German
Army Buerker, who was also being detained there, and
whom I had known for many years. He told me that he had
learned from the radio news, the evening before, of the
Russian accusation against the OKW of the alleged
preparation for bacterial warfare. In this connection,
he recollected an incident during his short activity as
Chief of the Organization Department of the Armed
Forces Operations Staff which he related to me more or
less as follows:"

And now comes a direct quotation:

"In the autumn of 1943, probably in late September,
there came to me in my office three gentlemen who were
unknown to me. One of them belonged to the Army Medical
Inspection, the second presumably was from the Research
Office of the Army Ordnance Branch, but as to the third
I can no longer recall his name nor to which office he
was attached. They explained to me that in their
opinion, the research work for countering any bacterial
warfare from the enemy side was no longer adequate.
Their mission, which was exclusively limited to
research for defence purposes, would have to be
extended. They were convinced that it was essential to
exhaust every possibility, even to the extent of a
counter-attack, which might take place. The gentlemen
urged me to discuss this with the Chief of the OKW
(Keitel) . I had only taken over the position of Chief
of the Organization Department at the beginning of
September, 1943, after a preparatory training period of
two months with my predecessor, Colonel Muenz (who fell
in the war), and up to then had not heard anything at
all about this matter. When making my next report to
the Chief of the OKW I drew attention to the matter. He
was extremely angry, and said to me in unusually sharp
tone 'That was prohibited some time ago and there can
be no question of such a thing,' or words to that

                                             [Page 189]

THE PRESIDENT: Dr. Kubuschok.

DR. KUBUSCHOK (counsel for the Reich Cabinet):

Mr. President, gentlemen of the Tribunal.

The proceedings which the prosecution proposes to
conduct against the organizations are in many respects
an innovation. For the first time organizations with
millions of members stand before the judge of a
criminal court; for the first time a judgment is
awaited covering all the civilian and military leaders
of a State. This brings to light the importance as well
as the complexity of proceedings of that kind. It
therefore follows that it is the duty of the defence
counsel of an individual organization to deal generally
with all the factual and legal problems of these

The prosecution bases its motion on the hypothesis that
according to general principles of law there exists a
collective criminal responsibility and that in
consequence a criminal condemnation of a group as such
is also possible. If it attempts to justify this
criterion of law by examples from the penal laws of
various civilized countries, it becomes clear that all
the examples mentioned do not imply the criminal
condemnation of the organizations as such, but only the
condemnation of the single individual because of his
membership in an organization declared criminal. Nor
could it be otherwise. Criminal responsibility can only
apply to an individual. All criminal law proceeds from
the concept of guilt, from the recognition of a
criminal act as such and from the sure determination to
carry out this act. Only a real person has the faculty
to recognize and to exercise a will, and therefore to
have a concept of guilt.

THE PRESIDENT: The Russian translation is not coming
through; go on now.

DR. KUBUSCHOK: It is another question whether, as a
result of the developments of our age, responsibility
of the organization is established for the domain in
which, because of its very nature, it is bound to harm
the interests of the State. This is the domain of
administration, not the domain of criminality rooted in
ethics. Laws were created to prevent these
irregularities, to punish the organizations as such
because of their responsibility in the fields of their
pernicious effect by means which can be applied to the
organizations as such. A punishment under
administrative law, or a fine because of the
prejudicing of State interests by an organization is
practicable, and for the sake of expediency the laws of
various countries have regulated it. This procedure is
based on a merely objective establishment, independent
of an examination of the question of guilt, which is
not possible.

Using this as a starting-point, we must examine what
the significance is of the declaration which the
prosecution demanded.

First of all this implies an establishment of the facts
with historical and assessable material.

Furthermore, the establishment of the criminal
character of the organization represents a retroactive
judgment of it in view of the fact that, in the
meantime, it has legally and actually dissolved, and,
what is more, it proscribes all members of the
organization. That declaration involves them all, and
in its effect, to use Mr. Justice Jackson's words, the
"bad" elements are segregated from the "good" elements.

Finally, and this is the most decisive and at the same
time the most serious implication of that declaration:
By virtue of the Control Council Law No. 10 it creates
a far-reaching establishment of guilt for the
individual member. The Control Council Law No. 10 is as
yet a skeleton law, so to speak. Article II (d)
provides that membership in an organization declared
criminal by the Tribunal is liable to punishment. Once
the Tribunal has given such a judgment, the former gap
in the criminal provision is filled in. The name of the
convicted organization then, so to speak, becomes part
of the wording of the

                                             [Page 190]

penal provision. The criminal nature of the
organization is now no longer a characteristic of the
facts. Therefore, there is no need for the individual
perpetrator to know of this characteristic of the
organization. The criminal action now to be adjudicated
by the Tribunal as a consequence of the Control Council
Law arises from the mere fact of membership. Therefore,
only the objective and subjective elements of the
membership as such are subject to adjudication by the
Tribunal. The individual member who in this trial is
called to account is faced with an incidental decision
already reached, which deprives him of all other
subjective and objective pleas which do not concern his
membership as such. When the question of his guilt
comes up, he can no longer plead that he did not know
of the criminal aims of the organization, that he did
not foster them, and can no longer advance motives for
his entering into the organization or remaining a
member of it.

The incidental determination goes even further and
affects the very substance of Article II, para. 2 (e)
of the Control Council Law, according to which the
members of the organization declared criminal also
share the responsibility for all the crimes which the
condemned organization is charged with having

In actual fact, the conviction of the organization
constitutes a conviction of the individual member who
belonged to the organization. The fiction of criminal
responsibility of the organization thus brings in what
no system of criminal procedure which has ever existed
has recognized: the guilt of the members is abstractly
disassociated from them, and transferred in toto to the
organization, with the result that the guilt of the
organization having been established, it is no longer
necessary to furnish complete proof of the guilt of the
individual member.

If one considers these consequences and the inescapable
effect which the declaration has of proscribing all
members, the definition of "criminal character" to be
applied by the Tribunal to the organization because of
the absence of legal provisions can have but one
result: the individual member will of necessity be
included in the Tribunal's argumentation; the concept
of the organization can be understood merely as the sum
total of individual members. This means that the
procedure for the determination of guilt now advocated
must be dealt with as a procedure against the
individual members and not against what is abstractly
termed an organization. This recognition gives rise to
the difficulty of the present proceedings, which,
according to the statement made by the prosecution, are
expected to facilitate the procedure of the subsequent
trials; but according to the generally adopted
viewpoint of the individual guilt of the perpetrator,
this actually means the shifting of the determination
of guilt to another Tribunal. It is true that this
Tribunal has the advantage owing to the fact that,
because of its connection with the proceedings against
the 21 major defendants, it can with greater ease and
with more uniformity form an idea of the actual basic
questions. To shift basic decisions to a Tribunal which
of necessity must take a world wide view of all the
historical events is, in itself, a wholesome idea, but
one should not ignore the limits of what is possible in
practice. If the Tribunal had merely been given the
task of determining historical events and of judging
whether a group of members of the indicted
organizations participated in them, this task could be
solved with comparative ease. In this case, however,
the Tribunal is given the task of making a declaration
on the total aims and the total results of the
activities of an organization, a declaration which in
the light of the foregoing must take into consideration
the knowledge, will and, action of each individual
member of the organization. This gives rise to the
difficulty of finding a basis for a judgment which is
in accordance with the wording of the proposed motion.

Another general legal viewpoint cannot be omitted in
order to arrive at the definition of the concept of
"criminal organization."

By its pronouncement of proscription already inherent
in this judgment, and by its incidental determination,
which is to be valid for the subsequent proceedings,

                                             [Page 191]

this trial deals with the member of the organization.
Because of his membership he is to be outlawed and
punished. The law which retroactively declares
punishable the membership in the organizations under
discussion is undoubtedly a new law. The legal aspect
of the retroactive law has already been dealt with in
the proceedings against the 21 individual defendants.
The prosecution then declared that in applying a
retroactive law there is justification for including
actions which the perpetrator, at the time of their
commission, knew to be an infraction of the general
moral and ethical laws or universal laws. However, the
case is different when it comes to the indictment of
the organizations. The judgment is not now concerned
with the fact that an individual perpetrator committed
a criminal act regardless of his awareness of its
general condemnation, although at the time of
commission a law against it did not exist. The point
now to be decided is whether a person incriminates
himself by being a member of an organization. Assuming
that the organization in question actually had and
carried out aims which were contrary to the general law
of ethics or to universal laws, this does not of itself
establish that the member of the organization was aware
of his guilt by becoming a member or continuing to be a
member. An organization can be criminal, its activities
can be criminal, but it does not necessarily follow
that the individual member who joins it or remains in
it, even though he may have knowledge of it, must under
all circumstances take upon himself the guilt of those
who set the criminal aims and were active in carrying
them out. This becomes particularly evident in the case
of an organization whose purpose was originally legal
and which subsequently set for itself and pursued a
goal partly or entirely illegal. A member who still
remains in it may do so from various motives, not
necessarily illegal. It is quite conceivable that such
a member resolves to remain in the organization because
he believes that in so doing he may be able to
influence the execution of the illegal aims, that is
either to prevent them totally or partly, or at least
to attenuate them. In regard to the criminal deed with
which he is charged arising from the mere fact of
membership in the organization, such a member is not
aware of a criminal or even a moral wrong. He can judge
his membership in the organization merely in the light
of the law which was in force at the time his action
was committed. This can only be the law of his own
country. A member can be incriminated only on the basis
of what the laws and jurisdiction of his country have
established in terms of criminal responsibility arising
from membership of organizations. I, therefore, must
confine my discussion to that which so far was known
abstractly to a German national about the law and
jurisdiction in connection with that question. There
are very few German penal laws which deal with criminal
membership of an organization. In his speech of 28th
February, 1946, Mr. Justice Jackson discussed these
laws. All these laws govern only individual proceedings
against a member. The established opinion of German
jurisprudence and adjudication on Paragraphs 128 and
129 of the penal code, and other similar provisions of
law dealing with the question of membership, is that
formal membership is not sufficient to establish the
facts involved in a case of criminal law, but rather
continued activity to achieve the illegitimate aims of
the organization. The member must endorse his
membership of the organization by his actions and he
must consciously further the illegitimate aims by his
deeds. It is not deemed sufficient that the member who
has knowledge of the illegitimate aims of the
organization outwardly displays them, thus expressing
his approval of the aims endorsed by his membership,
but he must participate in the achievement of the aims
by his own activity in the organization. Therefore,
according to German law, it is immaterial whether by
outward appearances his membership can be construed to
mean that he approves of the aims of the organization
and that he thus supposedly enhances in any way the
reputation of the organization before the world. This
eliminates all cases where proof of the knowledge of
criminal aims or even active participation by the
member in the achievement of these aims is not
forthcoming; and it eliminates particularly

                                             [Page 192]

those cases where the member disapproved of the aims
and did everything in his power to prevent the
achievement of the aims or at least tried to mitigate

A member of an association could, therefore, if he had
moral unobjectional reasons for joining or remaining in
an association, reply on this abstract German legal
principle. Therefore a retroactive law which makes the
simple fact of membership punishable cannot possibly
furnish the justification sought by the prosecution in
the case of individual defendants. Here there is no
infraction of a general legal disposition or general
moral principle which makes him conscious of the
illegality of his conduct. Such a violation is, in so
far as the reasons for becoming or remaining a member
are not morally objectionable, not established.

In order to establish the concept of "criminal
organization" underlying its judgment, the Tribunal
must take into consideration the knowledge and activity
of the individual member. It must be established that
through his membership in the organization the member
approved of its criminal aims and actually advanced
them by his own activity.

In defining the criminal concept it will have to be
assumed that all crimes mentioned in Article 6 of the
Charter concerning unlawful warfare, that especially
the crimes against humanity, Article 6 (c), must be
connected with the planning or execution of such a war.

Therefore in summarizing I should like to establish the
following: An organization can be declared criminal
only if all the individual members conceived a common
plan for an unlawful war, or if they joined in a war
which gave rise to the crimes willed by the planners
and as stated in the Charter. The individual members,
not only must have joined the organization with such
knowledge, but they also must have consciously advanced
these aims by their activity.

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