The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventieth Day: Thursday, 28th February, 1946
(Part 9 of 9)

[DR. KUBUSCHOK continues]

[Page 69]

I shall therefore go into the reasons why so few applications have been submitted, and I shall show that this is not the fault of those affected, or the result of negligence; not a lack of interest or disrespect of the Court, but rather that certain definite facts are responsible for this lack of response.

The announcement in the Press and over the radio at the beginning of the proceedings regarding the right to be heard was made at a time when there were practically no newspapers in the destroyed cities and radios were a rarity.

In addition, because of the paper shortage, it was made in small print and for the most part was simply not understood. The Tribunal ordered an announcement to be made in the internment camps, where a great number of the people affected are concentrated. To what extent this announcement actually was made, I have not yet been able to determine.

Mr. Justice Jackson presented various documents this morning and from them I shall be able to inform myself. The fact that so few applications have been made gives cause for concern. But even those people who have obtained knowledge of their right have apparently not been able as yet to make application to the Court. At the time of the announcement there was no postal service between the various zones, and there is still no postal communication with Austria, where there are probably tens of thousands of men in custody.

In the announcement to the organizations, because of the lack of postal facilities, two alternative ways were provided for submitting these applications. Both of them proved to be insufficient and are the main reason why we have so few applications. Those members who are not in custody were to submit their applications through the nearest military office.

I know of no cases in which an application was made in this way. The attempt to use this procedure failed because of the lack of co-operation on the part of the offices. I could give an example of this.

The interned members were to submit their applications through the commanding officer of their camp. Only in the case of a few camps, weeks and months after the beginning of the trial, were applications received which had been made in November, and even then only from some of the camps in the American and British zones and from a camp in the United States. From the Soviet, Polish and French zones, as well as from Austria, and other camps in foreign countries where there are camps, no applications have as yet been received, so far as I know. I shall leave it to the Tribunal to form its opinion of these facts.

The uniformity of the circumstances shows, however, that it cannot be the fault of the members of the organizations. Of the many difficulties I should like to give only one striking example which will give an insight into the situation. In one camp about four thousand members of various organizations asked in November, 1945, to be permitted to make use of their right. A few days ago I was told in the camp by a guard officer that at that time no applications were permitted since those in custody, according to the rules of the camp, could not communicate with anyone outside the camp. An army order would have been necessary for transmission of the applications, but there was no such order and the present restrictions were strictly adhered to.

Another reason for the non-arrival of applications is the fact that those concerned feared certain disadvantages. There was the fear that the commanding officer would take action against them because of their applications. This fear was inspired particularly by the fact that the announcement of the right to make applications was accompanied by the notice that the applicants would not be granted immunity

[Page 70]

of any kind. The effect of this is seen particularly in the case of those members not in custody, from whom only very few applications have been received, and these very often submitted anonymously or under false names.

It would be appreciated if the Tribunal could inform the public that such fears are without foundation and that the participation of all is sought, so that a false decision can be avoided. Thereby the inadequacy of the present procedure for making applications would be remedied.

From all this it can be seen that the first stage of the making of applications has already shown itself to be so inadequate that the legal hearing is a mere illusion. But even those applications that have been received are, with a few exceptions, worthless, and for the following reasons : On the basis of the applications the Tribunal is to decide whether persons should be heard. But for practical purposes this can happen only if these applications state the reasons. Either such reasons are entirely lacking in the applications or they are useless.

An application without such details or an application which contains in the main mere asseverations and figures of speech can form no basis for a decision.

Some of the applications do not even mention the official function of the member in the organization or his civilian profession. This faulty sort of application can obviously be traced back, in the case of the men in custody, to an order issued by the camp commander, which permitted only collective or group applications or prescribed certain forms to be followed. All those affected, whether in custody or not, were not able to set out their reasons intelligently, because those accused know only that their organization is said to have been criminal, but they do not know in what this criminality consists. In. so far as detailed statements were made, in single cases, they are based on assumptions.

In order to relieve the situation, defence counsel have visited various camps known to them to clear up the matter and to get practical information. I shall not go into the difficulties which had to be overcome. I do not want to discuss the limitation placed on the length of time that we could stay in the camp and similar things; but I must mention that the visits to the camps have been without success in so far as I have not yet received the sworn affidavits and the other written statements of the members made subsequent to our visit, although I know that in one case they were handed over to the camp commander.

In these circumstances therefore, today, three months after the beginning of the trial, the technical basis for the procedure for hearing the members is not yet in existence. Defence counsel for the large organizations are also hardly in a position to make up for this delay in a short period of time. On the other hand, the actual material is extremely comprehensive, as in the case of the Political Leadership where there are about fifteen to twenty categories, such as the Workers' Front, Propaganda Section, Organization Section, and so forth, which must be examined as to their functions and as to their criminal character. None of this can be neglected, and even the appearance of a less careful treatment must be avoided. I shall not discuss the difficulties which confront the defence counsel as a result of the fact that they now for the first time learn from the prosecution of certain legal questions.

The members in custody are particularly interested that their case be decided quickly. Nevertheless, I am compelled by prevailing conditions to propose a motion, namely, that the proceedings against the groups and organizations that are to be declared criminal be separated from the main trial and be carried out as a special subsequent trial. This motion is also compatible with the particular nature of the trial as I discussed it at the beginning of my remarks.

I should like to add to my motion a suggestion as to how the legal hearing might be made possible. This proposal of mine is occasioned by the proposal made this morning for carrying out the hearing by means of a "master," that is, I assume a legal officer of the Allied armies.

[Page 71]

I cannot object too energetically to this suggestion. In my opinion, it is one of the main rights of a defence counsel to collect his own information, and it is the right of every defendant to speak with his counsel. It would be incomprehensible that the Allied prosecution, should at the same time work both for the prosecution and the defence. One cannot expect that an officer, however unprejudiced would instruct the defendant and show an understanding of the latter and his feelings.

My proposal is this: that every camp should have a German lawyer, who receives his information from the main defence counsel and instructs the members interned in the camp and collects information. Then, in a relatively short period of time, a selection of material can be made by the defence counsel - a selection of the persons who can appear here, as well as of the material that can be submitted to the Tribunal as evidence.

In the proposal made here this morning by the prosecution I see an elimination of the defence counsel and I should have to ponder a long while as to what stand I, on behalf of the defence, would take towards such a proposal.

DR. MERKEL (counsel for Gestapo): Regarding the general questions concerning the admissibility of declaring an organization criminal, the technical procedure for the submission of evidence and the criminal character of the organizations in general, I refer to what my colleagues Dr. Kubuschok and Dr. Servatius have said.

I have just a few additional statements to make.

Regarding the question of applications, I can say from my own experience that it has seemed strange to me too that the length of time between the submission of applications in the individual camps, and the arrival of these applications in the hands of the defence, is so extremely long.

To mention one example, a few days ago we received applications from a camp in Schleswig-Holstein, some of which were drawn up in November or December. I myself, in order to get information, sent letters to the camps. I sent them five, six and seven weeks ago and I have so far received no answer.

In the Camp Hersbruck for example, I know that in November an application for a hearing with reasons given in detail, is said to have been sent by members of the SS and Gestapo to the defence counsel - this has been confirmed to me by reliable sources. Neither the defence counsel of the SS nor I have received this application.

Very few applications have been received from members of the Gestapo. In my opinion one of the reasons is that by far the greater number of internees doubtless do not know that they are being represented and defended in this trial, for the announcement sent to the camps was made in November of last year. Defence counsel for the organizations were not appointed until the decision of the 17th December, 1945. The correctness of my opinion can be seen conclusively, I believe, from the following: About three weeks ago in a German newspaper, the Neue Zeitung, an article appeared regarding this question of the organizations, and in this article it states word for word:

"The organizations, as is, of course, well known, are not represented in the Nuremberg trial."
Thus, if not even the Press knows of the fact that defence counsel for the organizations have been sitting here in the front row for months, and have often spoken here from the lectern, what can one expect the individual internees, who are living in camps hermetically shut off from contact with the rest of the world, to know about the facts of the defence? That is what has to be said on this point.

I also for the rest take the point of view that the question whether the organizations in their entirety can be indicted here is an absolute terra nova in the history of jurisprudence, and that it is something which, in its extent and its scope and in its effects shakes the very foundations of jurisprudence. In addition, as has been mentioned, organizations are to be judged which ceased to exist almost a year ago.

[Page 72]

In the criminal procedure of all civilized countries it is a basic condition that the defendant still be alive. Proceedings cannot take place against a dead defendant.

According to Mr. Justice Jackson's statements today, the organizations of the Gestapo and SS, for example, are to be held responsible for the liquidation of the Jews in the East; and it is pointed out that because of the death of millions of Jews, and the impossibility of determining who the individual perpetrators were, the organizations as such must be judged in order that the guilty be punished. Of course, the defence holds the conviction and takes the point of view that the guilty must be punished, but only the guilty. It is a fact, for example, that an Einsatzgruppe of the SD, whose task it was to solve the Jewish problem in the East, contained on the average only about two hundred and fifty members of the Gestapo. Considering the total number of forty-five to fifty thousand members of the Gestapo, this figure is thus a very small one. In the case of a general verdict against, for instance, the Gestapo, more than forty- five thousand people would be affected who had absolutely nothing to do with this matter. I refer to the example of a mass murderer who cannot be captured and whose whole family is taken into custody in his stead and condemned.

In view of the very important statements which have been made today by the prosecution regarding the question of the organizations, I ask the Tribunal for permission to state my attitude to just a few other points ; first of all, as to the question of the time during which the Gestapo is to be considered criminal. In this connection I must assert that at least until the year 1939 the Gestapo was a lawful, legally established institution. It is also true that the Indictment refers to crimes which can be charged to the Gestapo only after the autumn of 1939, that is, after the beginning of the war.

Today the prosecution has, furthermore, excluded secretarial and office workers from the Indictment. I am in agreement with this. It is in accordance with the motion already made by me in December. I submit further that not only the secretarial and office personnel but also all other employees be excepted, because the reason for dropping the charges against the office personnel is doubtless that the prosecution is convinced that this office personnel had nothing to do with the crimes of which the Gestapo is accused.

It should also be considered whether the administrative officials of the Gestapo, who represented about seventy per cent of the personnel, should be excluded from the Indictment. All the five hundred applications received so far are from such administrative officials. These officials were trained only in the field administration. They had neither the training nor the knowledge for the making of criminal investigators. They could not be used for the execution of any criminal actions because they had no executive power. They were active only in matters of personnel and finance, such personnel matters as the appointment of officials, promotions, dismissals, and so forth; such matters of finance as the administering of budget funds, computing salary and wage lists, renting of offices, etc. These are all things which have nothing to do with executive power, and especially not with the crimes imputed to the Gestapo by the prosecution. In my opinion these people are just as entitled to exemption as the secretarial and office personnel, who have already been exempted by the prosecution.

I should like to touch briefly on one other point of view, that is, the question of voluntary joining of an organization - a question which has played an important role. On 7th June, 1945, Mr. Justice Jackson, in his statement to the President of the United States, said among other things, the following:-

"Units such as the Gestapo and SS were fighting units and consisted of volunteers, people especially suited for and fanatically inclined to the plans of violence of these units." To what extent that is true of the SS, I do not know. As far as the Gestapo is concerned, it certainly is not true, for the Gestapo was a State organization founded by the defendant Goering on the basis of the law of 23rd April, 1933. It was a police authority just as was the criminal police whose

[Page 73]

duty it was to track down crimes or the regular police who were responsible for controlling traffic. The personnel consisted mostly of established officials some of whom had been in the police service many years before the creation of the Gestapo and who, when this police organization was created and in the ensuing years, were ordered to, detailed to or transferred to this police authority. According to the German law affecting civil servants these officials were obliged to follow such orders. They had never come voluntarily to the Gestapo. At the most there might perhaps have been one per cent. who were voluntary members; but ninety-nine per cent. of the members were forcibly ordered into the Gestapo on the basis of this law.

That is all I have to say at the moment. I should like, however, to reserve for myself the right to speak some time later about today's discussions.

THE PRESIDENT: Yes, certainly. We will adjourn now.

(The Tribunal adjourned until 1st March, 1946, at 1000 hours.)

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