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

The Trial of German Major War Criminals

Two Hundred and Fifteenth Day: Friday, 30th August, 1946
(Part 6 of 15)

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THE PRESIDENT: M. Champetier de Ribes, I think you can hardly finish your speech before the adjournment. I think perhaps we had better adjourn now.

(A recess was taken until 1400 hours.)

M. CHAMPETIER DE RIBES: Mr. President and gentlemen, the defence submits a second argument.

The organizations, it says, were independent and did not know each other. Some were subject to the State, others to the Party; and State and Party exerted their activity in different domains. Within the organizations themselves, watertight compartments divided the various sections composing them, and acted quite independently. At the risk of sacrificing the most compromised cells, the defence counsel are trying to clear from responsibility the greatest possible number of these supposedly isolated groups.

But this argument is contradicted by all we know of the general organization of the Reich's administrative services. In establishing the personal responsibility of each individual defendant, M. Dubost showed that the close interlocking of the organizations and the services is beyond discussion.

The National Socialist State was totalitarian. Its officials as well as its services derived their inspiration from a common ideology and pursued common aims. Unity of action was ensured by the penetration of the Party, the expression of the political will of the people throughout the whole State machine.

In their writings this unification of State and Party was realized by the law of 1st December, 1933: "The National Socialist Party has become the representative of the conception of the German State and is indissolubly bound to the State."

Public services had to co-operate with the Party services.

In fact, this interpenetration and unification of State and Party was realized by the concentration in the same hands of the powers emanating from both.

Hitler was simultaneously head of the State, the Army and the Party.

Himmler, chief of the SS, which was subject to the Party, was simultaneously head of the police, which was subject to the State.

The Gauleiter, Party officials, in most cases also represented the State in their capacity of governors of the Reich or Chief Administrators of Prussia.

The Chief of the Party Chancery had a part in the elaboration of important laws and in appointing higher State officials.

The law of 7th April, 1933, provided for the purging of State officials suspected of insufficient devotion to the Party, and we know with what brutality this purging was carried out in the High Command.

Thus, in their acts as in their writings, the interdependence of State, Party and Army was realized to the utmost extent, and in the sum total of their activity it is impossible to distinguish what share of responsibility belongs to the one or to the other.

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Is it necessary to give examples of this? We have already furnished many, and fear to weary the Tribunal.

Will it suffice to recall the close co-operation between the Gestapo, the SD, the SS and the Army in the common elaboration of general instructions and in the execution of operations against resistance forces, reprisals against civil populations and the extermination of the Jews?

Do we not find a convincing proof of it in Hitler's instruction of 30th July, 1944, which has frequently been quoted?

"All acts of violence committed by non-German civilians in the occupied territories against the 'Wehrmacht' the SS and the police and against the installations which they use, must, as acts of terror or sabotage, be fought in the following way:
(a) The troops and each individual member of the Wehrmacht, SS and police must kill on the spot terrorists and saboteurs caught in the act.

(b) Anyone caught afterwards must be transferred to the nearest local station of the Security Police and the Security Service ... "

By mentioning the Wehrmacht, the SS and the police three times, side by side, does not Hitler stress the close co- operation existing between these organizations?

Is it necessary to recall once more Keitel's numerous instructions, Marshal Kesselring's order of 14th January, 1944, and General von Brodowski's diary of operations, which place the Army at the disposal of the police or the police at the disposal of the Army for the savage repression of the actions of the resistance forces?

Is it necessary to recall Keitel's orders to the commanding generals in France, Holland and Belgium - that the Army should be made to participate in the pillage of art treasures organized and directed by Rosenberg?

Did not the witness Hoffmann - quoted by the Gestapo - declare to the Tribunal on 1st August that the "Nacht and Nebel" Decree was the work of the collaboration between the High Command and the Ministry of Justice?

The defence therefore tries in vain to lessen these responsibilities by dividing them between the State and the Party agencies, between the so-called independent organizations.

It is no more successful when it tries to establish the existence of watertight compartments separating, within the same organization, the various sections composing it. For example, whom does it expect to believe that the administrative officials of the SD (Security Police) and of the Gestapo were unaware of the vast scale of the deportations, when they had to solve the difficult problem of arranging the convoys; or that the offices of supply could fail to know of the exterminations carried out by chemical means, when they had to repair the gas vans?

In fact, all the departments of the Gestapo, the SD, the SS. and the High Command, are jointly responsible for the crimes committed in common; and what is true of these organizations is true also of the Reich Cabinet and the political chiefs, as has been shown by my honourable colleagues of the prosecution.

Are organizers less guilty than those who committed the deeds; is the brain less responsible than the arm?

We therefore consider we have proved the joint culpability of all those organizations which we request you to declare as criminal.

Does that mean that our purpose is to obtain from the competent tribunals the most severe sentences against all members of these organizations?

Certainly not. In requesting of your justice the moral condemnation of the organizations, without which the crimes of National Socialism could not have been perpetrated, we are not asking you to condemn without hearing men who, on the contrary, can plead their case in person before you.

Moreover, although the Charter of your Tribunal decrees that "in cases where a group or organization is declared criminal by the Tribunal ... its criminal nature is. considered proved and shall not be questioned," is does not say anywhere

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that all members of such groups or organizations must be arraigned before competent authorities, and in our opinion only those should be prosecuted who, having knowledge of the criminal activity of the group or organization, deliberately joined it, thus participating personally in the crimes committed by all collectively.

We think, on the other hand, that in the interest of impassive justice, and in the hope of universal pacification, the penalties must be made proportionate to the gravity of the offences charged, and that if the most severe penalties are justly attendant upon the crimes of which a member of an organization is found personally guilty, mere affiliation, even voluntary, to one of these groups should only be punished by penalties involving loss of freedom or even only by loss of all or some civil or political rights.

If the Tribunal shares this opinion, nothing in the Charter prohibits it from saying so in whatever form it deems most fitting.

Your verdict therefore will not be, as Dr. Steinbauer seemed to fear in his final pleading for Seyss-Inquart, the conclusion of a "trial of the vanquished by the victor." It will be the solemn and calm manifestation of eternal justice.

In this same final pleading, in an attempt to contrast the words of M. de Menthon with the attitude of one of the most heroic chiefs of the French Resistance, who has since become President of the Government of the Republic, Dr. Steinbauer recalled M. Georges Bidault's words while visiting severely wounded German after the liberation. "Comrades," he said to them, "I wish you a speedy recovery and a happy return to your country."

Seyss-Inquart's defence counsel was wrong. There is no contradiction between the words of Francois de Menthon and those of Georges Bidault, and French people, just as, I am sure, the free citizens of the United Nations, all agree to reconcile the severity necessary for the culprits with pity for those who, perhaps were only the victims.

In declaring the collective organizations criminal in order to enable the competent authorities to punish the guilty - but only the guilty - in solemnly reminding the world that before the arbitrary rule of men and governments a moral law existed, imposing itself on public figures as well as on private persons, on nations as well as individuals, and which it is criminal to violate, your sentence will contribute powerfully to the great work of universal pacification which is being undertaken in the organization of the United Nations, as well as at the Peace Conference, in New York as well as in Paris, by the representatives of the free peoples "in the great expectation of plain men of upright heart."


GENERAL R. A. RUDENKO: Your Lordship, your Honours: We have now come to the final stage of the Trial which has been carried out with exceptional care and with great skill. The prosecution has already presented exhaustive proofs in the individual cases of the major war criminals now in the dock. We too fully support the charges against the criminal organizations - the Government of Fascist Germany, the General Staff and the High Command of the German Armed Forces, the Leadership Corps of the German National Socialist Party, the State Secret Police (Gestapo), the Security Detachments of the German National Socialist Party (SS), the Security Service (SD), and the Storm Detachment (SA).

As has been established by legal proceedings, a gang of conspirators was at the head of Hitler's Germany, which seized all Government power and the administration of the whole country.

A group of conspirators of this nature, acting in a State with a population of many millions, at the centre of a huge machinery of State, could not exist without a whole system of subsidiary criminal organizations, connecting the conspirators with the outlying districts, the leaders of the high roads with the leaders of the

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streets and byways. Therefore, in Hitlerite Germany, a network of organizations endowed with great powers worked under the unceasing and immediate leadership of the conspirators. These organizations were the Leadership Corps of the NSDAP, the Gestapo, the SS, the SD, etc.

The law of 1933, according to which the machinery of the Fascist Party was merged into the State machinery of Hitler's Germany, was a public and legal recognition of the fact.

To strengthen the union between the governing gang and the organization, each of the conspirators acted several parts, and their activities were manifold; Goering was a Minister, a Commander of the Air Force, a Plenipotentiary for the Four- Year Plan, Reichsleiter and the Supreme Leader of the SA; Hess was a Minister, Hitler's Deputy in the Party and General of the SS and SA; Rosenberg was Reichsleiter of the National Socialist Party on questions of ideology and foreign policy and Minister and Obergruppenfuehrer of SA, etc. As Goering the Minister is inseparable from Goering the Obergruppenfuehrer of SA, so the Gestapo and other criminal organizations cannot be separated from Hitler's regime. We can envision Hitlerite Germany without libraries, without schools, even without hospitals, but Hitlerite Germany could not have existed without the SS and the Gestapo.

Reflecting this political actuality the Charter of the International Military Tribunal provides for two kinds of participation in Hitler's criminal associations: Article 6 of the Charter refers to Participation in the Criminal Conspiracy, and Articles 9-10 refer to the Participation in the Criminal Organizations. Both standards are organically and indissolubly connected, for they reflect, in terms of penal legislation, that correlation and connection which factually existed between the conspiracy and the organizations in Hitlerite Germany.

Having closely connected these two forms of participation by the Hitlerites in the international crimes - i.e., Participation in the Conspiracy and Participation in the Organizations - the Charter of the International Military Tribunal has established with full reason different criminal legal consequences for one or the other form of participation.

Participation in the conspiracy which, by its very nature, cannot include any very considerable number of persons, is provided for by the Charter as an independent criminal action.

On the other hand, the question of responsibility for participation in the criminal organizations, comprising hundreds of thousands of members, is solved by the Charter in a different sense. Based entirely on principles of law and justice, the Charter of the Tribunal leaves it to the competence of the National Tribunals, associated with the examination of the criminality of a large number of individual persons, to determine the individual responsibility of the members of the organization.

According to Article 10 of the Charter "if the Tribunal considers one or another organization as criminal, the National Courts have a right to prosecute separate individuals for belonging to criminal organizations."

In accordance with the instructions of Article 10 of the Charter, the Tribunals of USSR, USA, Great Britain and France and of eighteen States which joined the London Agreement may finally condemn, but they also have the right to come to the conclusion that the defendant is not a member of the organization at all, or only belongs to it as a matter of form and was in fact far from the organization, and on the strength of such a conclusion they may give a verdict of acquittal. All these and allied questions were and remained entirely within the competence of the National Courts. These Courts are only limited in one principally and profoundly important respect: If the International Tribunal finds that the organization is criminal, the National Courts can neither deny nor even contest the criminal character of such an organization.

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This delimitation of the competence of the International Tribunal and the National Courts is extremely important for the understanding of the regulations of the Charter of the Tribunal in connection with the criminal organizations.

Indeed, it is precisely because the Tribunal will only have to decide the general question of the criminality of the organization, and not separate questions about the individual responsibility of these organizations, that the Charter does not offer any hard and fast ideas concerning the interpretation of the concept "organization" and in this case it does not bind the Tribunal by any formal requirements.

The absence, in the Charter, of any detailed definition of a criminal organization is, therefore, not an omission in the Charter, but its basic position which follows from the above- mentioned fact, consigning the elucidation of the concreteness of these questions to the agencies of national justice. Attempts therefore to demand some kind of definite indication (voluntary membership, mutual information, etc.) are not only unsupported by the Charter but differ from it by their entire structure. The main and sole task presenting itself to the Tribunal does not consist in similar investigations, such as have been and will be dealt with by the National Courts, but the establishing of one decisive fact: whether by its criminal activities the organization participated in the realization of the plan of Hitler's conspirators.

It is precisely in compliance with this task that the Charter defined the order of the proceedings for the prosecution of organizations.

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