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

Seventy-First Day: Friday, 1st March, 1946
(Part 8 of 9)

[Page 104]

MR. BIDDLE: Now, somewhat along those same lines, you stated, in trying to define what a criminal organization was, that its membership must have been - I am quoting your words - "generally voluntary" and its criminal purpose or methods open and notorious and "of such character that its membership in general may properly be charged with knowledge of them."

Now, I am going to ask you a question which is somewhat repetitious of what the President asked you, but perhaps you can clarify the matter a little more. Would it not be inconsistent with that test which you suggest for criminality, if we decline to consider whether any substantial segment of the organization - I mean a section or segment might comprise a third of the whole organization or even more, like the Waffen SS within the General SS - was either conscripted, which is one test, or ignorant of the criminal purpose, because if such a substantial segment Earlier, Mr. Biddle and Mr. Jackson were considering Article 10, and Mr. Jackson expressed some criticism concerning the penalties, which are not individualized penalties, since they can extend as far as the death penalty.

There are, of course, some crimes for which capital punishment seems justified, such as Crimes Against Humanity. But is it not going too far, to consider imposing the death penalty as the maximum for a crime which in France would perhaps, be considered purely "material" - the crime of belonging to a criminal organization? Would it not be too severe, for us to impose the death penalty? And might not the International Military Tribunal be forced to reduce unduly the notion

[Page 105]

of a criminal organization, precisely because we consider the possibility of this penalty being too severe? In other words, does Mr. Jackson absolutely exclude for the International Military Tribunal the power to fix a penalty, or at least a maximum penalty, for the crime of belonging to a criminal organization?

MR. JUSTICE JACKSON: I should not think that it was within the proper sphere of the Tribunal to deal with the question of penalties, for the reason that no power to sentence any one other than the defendants on trial is given to this Tribunal; I mean, no power to sentence for membership in the organizations. Therefore, I think no incidental power to control penalties is given, but the power to declare an organization criminal does, incidentally, confer power to determine what that organization is, and I have not been disposed to question the power of the Tribunal to carry that definition to great detail, although I would question the wisdom of it.

The power, however, of sentence for membership is not even remotely conferred upon the Tribunal, and I would think that that would be a rather drastic expansion of its powers.

M. DE VABRES: Those were the only questions I wished to ask.

THE PRESIDENT: We will adjourn for ten minutes.

(A recess was taken.)

THE PRESIDENT: Sir David did you want to add a reply or did you come in order that we might ask you some questions?

SIR DAVID MAXWELL FYFE: First, if the Tribunal will allow me, there are three or four points on which I should like to add a word.

The first point that Dr. Kubuschok made was that the procedure of asking for a declaration against the organizations was objectionable for two reasons: first, because it was founded on the limited phenomenon in Anglo- Saxon jurisprudence, that a corporation may be convicted in certain limited spheres and secondly, that the organizations were in fact dissolved some time ago.

I think it is important to stress that that is not the legal conception which underlies this portion of the Charter. It is really based, in my submission, on a doctrine found in most systems of law, either res adjudicata or the conception of the judgement in rem as opposed to the judgement in personam. That is, that it is in the general and public interest that litigation on a particular point should not be interminable, and that, if the appropriate Tribunal has come to a decision on a point of general interest and importance, that point should not thereafter be litigated many times.

It is the essential view of the prosecution here that this Tribunal, having had the advantage of evidence dealing with the whole period and functioning of the Nazi conspiracy, is the appropriate and, indeed, the only suitable tribunal for deciding the question of criminality. It is a prospect which would be quite impracticable and beggars the imagination as to time, to consider that every military government or military court should decide, one after the other, the question of criminality of great organizations like these. And, therefore, we have in the Charter adopted the procedure that that preliminary question will be decided once and for all by this Tribunal.

The fact that the organizations have been administratively dissolved is irrelevant. What is important is, what was the nature of the organizations when they did function? And that is the issue which the Tribunal has to determine. And we submit, and indeed say, that it is a clear implication, if not indeed expressly within the words of Article 9, that it must be at the trial of the individual defendants that the question of this criminality should be decided, and we say that, apart from considerations of practicality, the wording of Article 9 is a clear guide against separation of these issues as suggested by two or three of the defence counsel.

I only want to add one word about what has been said on the argument on Article 10. Dr. Kubuschok made the point that this procedure really acted

[Page 106]

entirely against the individual. There are at least two answers: the first, which I have endeavoured to give as to the legal concept behind the idea of a declaration, and the second, the one which has been contested before the Tribunal, as to the rights of defence. May I say that, in my submission, membership in an organization is a question of fact, and therefore these defences of duress, fraud or mistake - to take three examples - must clearly be permissible and good defences on that question of fact. The third is that every document such as the Charter - the same would apply to every piece of legislation - always contemplates intelligent and reasonable administration in carrying out its requirements, and it would be, in my submission, idle to take the view that where you have a permissive enactment like Article 10 - and it is clearly permissive as to prosecution - intelligent administration should prosecute every one who could be prosecuted under the Act.

In our candid proverb, "hard cases make bad law", and in my submission, it would be wrong to decide or interpret on an extremely unlikely hard case.

I want, if I may, to say just one or two words on the argument so interestingly put forward by Dr. Servatius and mentioned a few moments ago by the learned French Judge.

In my submission there is no legislative functiori for this Tribunal whatsoever. There is a definitely judicial function, and I want to make it quite clear: I do not qualify it by "quasi judicial" or any qualification at all. It is a simple judicial duty. The first portion of that duty is to define what is criminal. In my submission, as Mr. Justice Jackson argued yesterday, that presents no difficulties. It occurs in Article 9, three articles after Article 6, and "criminal" in that context means an organization whose aims, objects, methods or activities involved the committing of the crimes set out in Article 6.

When "criminal" has been defined, it is a matter of judicial weighing of evidence to decide whether there is evidence of these crimes being committed by the organization or being the aim or object of the organization as I have stated. But I respectfully ask the Tribunal to hesitate long before it accepts the argument of Dr. Servatius that this Tribunal should decide the interpretation of "criminal" on its own a priori basis, to use Dr. Servatius' own words, of politics and ethics. That would be introducing a new, dangerous, and unchartered factor into the trial. There is, in my submission, a clear line of guidance for the judicial approach, and nothing in the Charter to support the prima facie unexpected idea that a body established as a tribunal should delegate to itself legislative powers.

Again, if I may add just one word as to the conclusions which Dr. Kubuschok drew on the question of criminality as a ground for deciding the relevancy of evidence, his first conclusion was that the organization in question, according to its constitution or charter, did or did not have a criminal aim or purpose.

I accept, of course, the test of aim and purpose, but I do not accept the limitation as to charter or constitution. The criminal aim or purpose may be shown by the declarations or publications of the leaders of the organization, and also, as I submitted, by its course of conduct in method and action. I agree with Dr. Kubuschok that aim or purpose is the first test, but I do not agree with his limitation as to establishing it.

His second point was that crimes under Article 6 were not committed within or in connection with the organization, or were not committed continuously over a period. The first part of that would seem fairly clear, that, if the crimes were not committed within or in connection with the organization, the organization is obviously in a very favourable position. But I first answer the second part, by saying that it does not come into the picture of this case, that there is any instance of isolated crimes with regard to every organization. The crimes alleged are, in, fact, spread over the period alleged in the Indictment, but I suggest that the adoption of such a criterion does not really help. One comes back to the first point of Dr. Kubuschok, that aims or purposes, as disclosed by declarations, methods, or activities, are the primary and most important tests.

[Page 107]

Then, the third point that Dr. Kubuschok made was that an appreciable number of members had no knowledge of the criminal aims or of the continuous commission of crimes. I endeavoured to stress, as did Mr. Justice Jackson, that the prosecution's test is constructive knowledge; that is: ought a reasonable person in the position of a member to have known of these crimes? And that really is the answer, in my respectful submission, to the relevancy of individual knowledge of one particular member.

It is only too true that during the period under discussion a very large number of people made a habit of sticking their heads in the sand and endeavouring to abstain from acquiring knowledge of things that were unpleasant. In my respectful submission, that sort of conduct on the part of a member would not help him at all, and the only answer to that is to adopt the test which we have suggested: ought a person in that position reasonably to have known of the commission of the crimes?

Dr. Kubuschok's fourth point is, that an appreciable number of members or certain independent groups joined the organization under compulsion or illusion or superior orders. Shortly we answer that by saying, that that is only relevant to the defence of an individual member in the subsequent proceedings, and, of course, it is only a defence where he can show that he has taken no personal part in the criminal acts.

Then, the last point which Dr. Kubuschok made was that an appreciable number of members were honorary members. Again we say that that is only relevant to the defence of the individual member, and it does not really alter or increase the defences open to him.

The only other point of Dr. Kubuschok's which I do think requires mention is that, in considering how evidence could be presented, he said that certain rights of defence are universal. The first of these which he claimed was direct verbal testimony, and he said that each individual defendant should have this right. He then admitted that that was practically impossible, and suggested as a solution that we must typify, that is, that representatives of groups in the various camps should make affidavits showing what percentage took part in criminal actions, or knew about them.

I want to point out to the Tribunal that it is expressly laid down in the Charter that members of the organization are entitled to apply to the Tribunal for leave to be heard, but the Tribunal shall have power to allow or reject the application. As a point of construction, no less than of sense, there would have been no object in giving the Tribunal the power to reject the application if it were implicit that everyone should have the right to be heard.

The answer is that the Tribunal has complete discretion to decide what line and what course shall be taken to procure the evidence. The prosecution, through Mr. Justice Jackson, has indicated that it makes no objection to any reasonable form of collecting relevant evidence. What the prosecution objects to is evidence being tendered on the issue before the Tribunal which is only relevant to the question of individual innocence or guilt of the member.

My Lord, I could have dealt, and indeed was prepared to deal, with a number of points raised by the other counsel for the defence. I hope they will not think that it is any disrespect to their arguments that I have not dealt with them, but I know that the Tribunal wishes to ask certain questions, and I do not want to trespass on their time. I only want to deal with one point because it kills with one stone two birds that have flown against our argument in this case.

It will be remembered that when I dealt with the SA yesterday, Dr. Seidl - and I am sorry he is not here - raised the question that the defendant Frank was not a member of the SA; and Dr. Loeffler, in dealing with the SA today, raised the question that its activities no doubt did not really extend after 1939, and not importantly after the purge in 1934.

[Page 108]

I find an interesting quotation from the semi-official publication, "Das Archiv", for April 1942, and as it is very short and deals with these points I venture to read it to the Tribunal so that it may appear on the record. At Page 54 it says:-
"SA Unit, Government General.

At the order of the Chief of Staff of the SA, there took place the foundation of the SA Unit, Government General, whose command Governor General SA Obergruppenfuehrer Dr. Frank took over."

I only quote that to finish my argument, to show, as indeed all the evidence shows, that with regard to the SA, no less than any other of the organizations, the prosecution have provided evidence of crimes reaching over the period which they have stated.

I deliberately have cut out anything further that I might say, my Lord, because I do not want to shorten unduly the time in which the Tribunal may wish to ask me any questions.

THE PRESIDENT: I think there is only one question that I should like to ask you. As I understand it, you say that the prosecution have proved facts from which one must conclude that every reasonable person who joined any of these organizations would know that they were criminal.


THE PRESIDENT: You would agree, would you not, that proof of any fact which went to contradict the facts from which you have presumed knowledge of criminality could be proved by the defence?

SIR DAVID MAXWELL FYFE: Certainly. If the defence sought to prove, to take an extreme example, that the conduct of the SS with regard to, first of all, concentration camps and, secondly, killing Jews and political commissars on the Russian front, was done in such a way, despite the vast territory over which these crimes have been proved to have been carried on, was done in such a way that nobody knew about it-if there was relevant evidence on that matter, then they could call it, on the general point that it was not a matter of imparted constructive knowledge, but of memory.

THE PRESIDENT: I only asked you that question because there were certain observations by Mr. Justice Jackson which did not seem altogether to accord with the answer which you have just given.

SIR DAVID MAXWELL FYFE: I think that, as I understood Mr. Justice Jackson, he was saying that it might not be relevant to prove that one member did not know of the crimes, and I thought that our two approaches really did fit in with each other.


THE TRIBUNAL (Mr. Biddle): I take it then, Sir David, that you would say that evidence with respect to general knowledge by any very substantial segment of an organization would be relevant, would it not?

SIR DAVID MAXWELL FYFE: Well, I think it would be relevant if it were not absurd. I mean, a disclaimer of knowledge of certain acts may be so absurd that the Tribunal should not take the time of to inquire into it.

MR. BIDDLE: That would apply to any evidence, of course. But my point was: You have said that evidence with respect to general knowledge over a whole organization would clearly be relevant.


MR. BIDDLE: And now I ask you whether that would be true with respect to any substantial segment of an organization such as the Waffen SS.

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