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-Second Day: Saturday, 2nd March, 1946
(Part 1 of 3)

[Page 114]

THE PRESIDENT: General Rudenko.

GENERAL RUDENKO: Your Honours, permit me to make a few supplementary remarks concerning the criminal organizations, a problem to which the Tribunal has devoted much attention in the last few days.

I consider it essential, in the first instance, to clarify completely the legal aspect of this problem.

There is, in the Charter of the Tribunal, a marked absence of any statement to the effect that the recognition of an organization as being of a criminal nature would automatically entail the bringing to trial and, further, the condemning of all the members of these organizations. On the contrary, the Charter contains a definite indication of an opposite nature.

Article10 of the Charter, repeatedly quoted at this trial, states that the national courts have the right, though not the obligation, to bring to trial members of organizations declared as criminal. Consequently, the question of the problem of the trial and the punishment of individual members of criminal organizations lies exclusively within the scope of the national tribunals.

The legal sovereignty of every country that has adopted the Charter of the Tribunal is thus limited in one respect only - the national courts cannot deny the criminal character of an organization, once it has been declared to be criminal. The Tribunal can impose no further limitation on the legal sovereignty of the contracting parties.

Therefore, Mr. Justice Jackson has stated here - and with reason - that the recognition of an organization as being of a criminal nature, and therefore automatically entailing the mass condemnation of all its members, is a mere figment of the imagination. That, I would add, has not sprung from legal grounds but from some entirely different source.

It appears to me that this legal problem is also based on a definite misunderstanding. One of the counsel for the defence, Dr. Servatius, was speaking here of the legislative authority of the Tribunal. The authority of the International Military Tribunal, organized by four States in the interest of all freedom-loving peoples, is enormous, but, of course, this Tribunal, as a legal organization, does not and cannot possess any legislative authority.

When solving the problem of the criminal character of an organization, the Tribunal is only exercising the right entrusted to it by the Charter, i.e., to solve, independently, the question of the criminality of the organizations.

Of course, the verdict of this Tribunal, when declared, acquires the value of a law, but that is the value attached to any of the verdicts of the Courts once it has been delivered.

Counsel for the defendant, Kubuschok, has stated here that the decision of the Charter with regard to the criminal organizations is a legal innovation. This, to a certain extent, is true. The innovation consists in the Charter, and in all its articles, of the International Military Tribunal whose creation, per se is an innovation in the first instance. But should the defence consider it possible to deplore this fact, I would consider it opportune to remind them of the causes of these legal innovations.

[Page 115]

The very evil deeds committed by the defendants and their associates, deeds, hitherto unknown in the history of mankind, have, of necessity, imposed new legislative measures for protecting the peace, the liberty and the lives of the nations against criminal attempts. Moreover, the States which created this Tribunal, and all peace-loving people, remain invariably faithful to the ideals of law and to the principles of justice. Therefore, responsibility for participation in criminal organizations will be established only when personal guilt has been proved. In reality, the national courts will decide the problems of individual responsibility.

A few words now on the practical side of the problem. It has been stated here that several detachments of the SS did not follow any criminal objective. It is difficult, your Honours, to find within the fascist machinery neutral organizations which did not follow criminal objectives. Thus, the defence counsel for the SS, Dr. Babel, mentioned the existence of a research department for dog breeding within the SS. It would appear that this was an organization of general utility. It seems, however, that the scientific "dog breeders" in this organization were engaged in training hounds to attack human beings and to tear their appointed victims to pieces. Can we isolate these "dog-breeders" from the SS?

In Danzig another scientific research institute was engaged in the preparation of soap from human fat. Perhaps we should exonerate these "soap-boilers" as well from all criminal responsibility?

At this point two practical suggestions have been put forward by the defence counsel: the isolation, as a separate activity, of the case of the criminal organizations and the establishment, in the various camps, of a defence organization having as its purpose the collection of information and evidence. In practice, however, both proposals would create insoluble difficulties for the Tribunal in the execution of the immense task imposed upon it by the Nations.

This task is precisely formulated in the Charter which instructs the Tribunal to solve the problem of the investigation of concrete facts concerning members of these organizations. Therefore, an appeal to the Tribunal to isolate and consider the case of the criminal organizations as an independent activity, is tantamount to an appeal to the Tribunal to infringe the articles of the Charter.

Article 9 of the Charter decides the problem of the criminal organizations when investigating the case of any one particular member, but it also has one other meaning for the trial. It shows, as I have already mentioned, that the fact on which the statements and the solution of the question of the criminality of the organization are based is the presence in the dock of the accused representatives from the corresponding organizations. As is known, in the present case, all the organizations which the prosecution suggests should be considered as criminal, are represented in the dock.

There is evidence in this case which amply suffices to admit the criminality of these organizations. Therefore, the calling of special witnesses, capable of giving evidence on these organizations, can appear only as a supplementary source of evidence. I am bringing these matters to a close, your Honours, and in closing I cannot omit one argument of the defence. It was stated here by the defence, that as a result of the admission of the criminality of these organizations millions, of Germans, members of these organizations, would be brought to trial. Together with my colleagues of the prosecution, I am not of this opinion, but there is something more I would like to say.

By this reference to hypothetical millions, the defence is attempting to hinder the progress of Justice. However, before us the representatives of the nations who have borne the burden and the suffering of the struggle against Hitlerite aggression, before the conscience and consciousness of all freedom-loving people, appear other figures, other millions of victims irrevocably lost, tortured to death in Treblinka, Auschwitz, Dachau, Buchenwald, Maidanek and Kiev. It is our

[Page 116]

duty to spare no effort to crush the criminal system directed by the fascist organizations against humanity.

We are deeply convinced that the Tribunal will unswervingly follow the path towards a just and rapid verdict and that it will, in full measure, chastise those whose crimes have shattered the earth.

MR. BIDDLE: General Rudenko, may I ask you a few questions? General Rudenko, you remember that Mr. Justice Jackson suggested certain tests that we should use before we found an organization criminal, whether the tasks and the purpose of the organization were open and notorious, in order to show that the members knew what they were doing.

Now, if we find that any organization is criminal we would necessarily find, I presume, on that test, that its actions were open and notorious. Now, if a member of that organization found to be criminal was then tried by one of the national courts, I suppose under that finding he would not have any right to show that he did not know about it, because we would have found that the knowledge was so open and notorious that he must have known, so he could not raise as a defence that he had no knowledge of the criminal acts, could he?

GENERAL RUDENKO: That is quite true. But we are bearing in mind the fact that the national courts investigating the problem of the individual responsibility of individual members of the organizations will, of course, proceed from the principle of individual guilt since, naturally, we cannot exclude the possibility that in the organization of the SA, which fundamentally and in an overwhelming majority was aware of its criminal purpose, there might yet be individual members who might have been lured into the organization either by deception or by some other means and have been unaware of its criminal purpose.

MR. BIDDLE: But that would not be any defence to him, would it? He could not say he had no knowledge, because we would have already found that the knowledge was so open and notorious that he must have known.

GENERAL RUDENKO: Why? I personally proceed from the standpoint that if the national court investigates the case of members who plead ignorance of the criminal purpose of the organization to which they belonged, the national court must examine these arguments submitted in their defence and estimate them accordingly.

MR. BIDDLE: How could they consider that if we make a rule that the activities of the organization are so notorious that he must have known? How can he then say he did not know?

GENERAL RUDENKO: I still maintain the point of view, and I still interpret and understand the Charter to mean, that the judgement of the International Military Tribunal should determine and decide the question of the criminal character of the organizations, but where the question of individual responsibility and guilt of every member of this organization is concerned, the decision falls exclusively within the competence of the national courts. It is therefore extremely difficult to foresee all the possible individual cases and the eventualities which might arise when investigating activities of individual defendants.

Yesterday you submitted a question to Sir David Maxwell Fyfe concerning a member of the SA who had joined the organization in 1921 and left a year later. These, of course, are special cases and I cannot state how numerous they are; they are unavoidable, and when we come to the question of the extent of his information, the reasons for his entering and the reasons for his leaving this organization, when we come to estimate the value of his actions, it seems to me that it should be done by a national court which will examine the findings of the defence and appreciate them accordingly.

[Page 117]

MR. BIDDLE: Can you say now what defence he would have before the national court except the defence that he was never a member? Does he have any other defences so far as we know? Does the Article No. 10 permit him any other defences?

GENERAL RUDENKO: It is difficult for me, at the present moment, to say what arguments the members of these organizations may put forward, for were I to speak it would be on assumption. But I, for instance, consider, that the argument produced (if produced) which might be considered sufficient to exonerate this member of the organization would be that he had been coerced into joining.

MR. BIDDLE: May I ask you two more questions.

You used the expression that any evidence given by the defendants would be merely supplementary. That expression is not known to our law, and I would be very interested in your telling us what you meant by supplementary evidence. I do not know what the term means.

GENERAL RUDENKO: I did not put it that way. (This is perhaps an inaccuracy of translation). What I did say, speaking of questions connected with further investigations of the matter of the criminal organizations, was that this investigation should be carried out together with the investigation of the case of any one member of this organization, inasmuch as representatives of those criminal institutions are now in the dock. But I do say that this is already conclusive material for the recognition, or the denial of the criminal nature of this organization.

But the Tribunal can, of course, consider this evidence as inadequate, or shall we say, the defence may consider that further supplementary evidence may be needed. In this connection, I consider that the calling of witnesses capable of submitting special evidence on the problem of the criminal or non-criminal character of these organizations may be presented to the Tribunal as supplementary evidence.

MR. BIDDLE: One other question on the SA, which I asked Sir David yesterday.

What do you consider was the function of the SA after the Roehm Purge, or, to put it a little differently, what criminal act do you believe the SA was engaged in?

GENERAL RUDENKO: I consider that the SA, after the Roehm incident committed the same criminal acts as the other organizations of Hitlerite Germany. I wish, in confirmation of this evidence, to refer to facts like the seizure of the Sudeten territory; as is well known, detachments of the SA played an active part in this affair.

All the subsequent events which occurred in Germany in connection with the Jews and, later, in the territories seized by Germany (Czechoslovakia and others) these criminal events took place with the connivance of this organization - the SA.

MR. BIDDLE: Thank you.

THE PRESIDENT: Does the prosecutor for the French Republic wish to say anything?


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