Chapter XXI: Section C: of my Appendix A, that the crimes of the SS were committed, (3)

In conclusion, I should like to say a few words about the hearing of SA members. Most of the members of the SA are free. If only a few so far have written to the Court, this is almost exclusively due to the fact that, since the SA in this country is generally considered inoffensive, they can hardly imagine that a Court with the experience and the high standing of this Tribunal could reach a decision which would differ from public opinion. Should the Court, however, adhere to its conception of the SA, then I should like to support the suggestion made yesterday by the Prosecution to the effect that the notice be published once more for the members to make an effort to defend their interests. However, I share the opinion of counsel for the Leadership Corps, that it would not serve the interests of the proceedings if the direct contact between the Defense Counsel and his client were destroyed. In the case of the SA men who are free, a technically simple method could be used by having the main Defense Counsel in Nuremberg appoint deputies, preferably lawyers, in every province, for example, Baden, Bavaria, and Württemberg. The provincial press should make mention of these men. Every individual member of an organization could, with the help of these lawyers, answer by means of an affidavit those questions which the Court has found to be relevant.

In a very gratifying manner the American Chief Prosecutor stated yesterday, if I understood him correctly, that in the trial of the organizations, because of its fateful importance for millions of people, the principle of justice is much more important than the question of speedy proceedings. I should therefore like to join in the request made by Counsel for the Leadership Corps, that the trial of the organizations, which is to be regarded from different points of view, be separated from the trial of the main defendants.

Members of the Tribunal, I am at the conclusion of my remarks. I should like, however, to reply to the words, words worth heeding, spoken by Justice Jackson yesterday at the beginning of his address. He said that for the first time in history a modern state had completely collapsed, and that this surrender created for the victorious nations completely novel problems; that one of the most important tasks was to destroy the structure of those organizations and to prevent this country forever from waging wars of aggression or carrying out pogroms. All people of good will must sincerely welcome this aim and support Justice Jackson. It is, however, questionable whether the right way toward that end is to defame all members of organizations as such, involving millions of people.

I ask the Tribunal to consider that there is hardly a family in this country which did not have near relatives in some one of these organizations at some time. The organizations are dead, the system of terror and falsehood has disintegrated, millions of misled and deceived people have turned away from their leaders and seducers. But if they find themselves ostracized and stigmatized along with them the effect might easily be the opposite of that which we all hope for.

Justice Jackson correctly pointed out in his speech yesterday that the Control Council will possibly change the method of denazification used so far, which has been rather mechanical, and make it more individual. Present experience that mechanical treatment evokes the feeling of injustice and thereby a false solidarity, might contribute to this. The millions of simple misled camp followers of the organizations would consider such a verdict an act of revenge rather than a manifestation of justice. The ringleaders, however, could conceal their actual guilt behind the backs of millions of people. The educational and corrective effect of a verdict as well as the idea of just atonement would consequently be weakened.

THE PRESIDENT: The Tribunal will adjourn now for 10 minutes.

[_A recess was taken._]

DR. LÖFFLER: I ask the Tribunal that I be permitted to make one more remark.

In my previous request I did not ask for the exemption of one particular group, namely, the Stahlhelm; this was only because, according to my information, the Stahlhelm was transferred in its entirety to the SA Reserve after the seizure of power and therefore, in my opinion, is included in the declaration made yesterday by Justice Jackson exempting the SA Reserve.

HERR BABEL: May it please the Tribunal, I should have considered it appropriate in the interest of a speedy trial that the Defense not answer the inquiries of the Tribunal and reply to the arguments of the Prosecution until they have received in writing the extensive and important arguments of the Prosecution and are thereby in a position to deal with the whole complex of problems comprehensively and conclusively.

Since a number of Defense Counsel for the organizations have already spoken, I feel prompted to do the same, insofar as I am in a position to do so at this time and consider it necessary and appropriate.

The Tribunal desire to have a discussion in order to define the legal concept of the criminal organization and desire in particular to examine the question of which qualifying elements of a factual nature are necessary in order to declare an organization criminal. The Defense believe that a final and basic definition of this concept, which is entirely new to any legal system, can be given only at the end of the proceedings by means of a special hearing of evidence after all necessary factual information has been collected and examined.

The Prosecution have already presented a definition, which, however, raises very serious objections, because it is derived from legal ideas which have grown in countries other than Germany, under different conditions and circumstances, and which involve far less important legal consequences than those now considered by the Tribunal, the public opinion of the world, the German people and jurisprudence, and jurisdiction in general.

The organizations now indicted are mostly large mass organizations, without aims and ideas of their own, organizations whose Party-political aims and purposes and Party activities developed to national dimensions.

A just and pertinent definition can be found for these organizations only on the basis of the evidence to be presented concerning the nature and aims of these organizations and the knowledge, intentions, and activities of their members. Considering the basic difference of the organizations which have been and are now being investigated, it is more than questionable whether it will be possible to take the legal basis applied so far to single cases as a basis for proceedings against political organizations comprising millions of people.

The Prosecution and the Defense are probably agreed that the Indictment is actually not directed against the organizations, which do not exist any more anyhow, but in fact against the former membership. Likewise the opinion seems to be held unanimously that the Tribunal as a matter of principle will give the members an actual opportunity, not only a theoretical one, to be heard on the question of the criminal character of the organizations; that follows all the more since, according to Law Number 10, the possibility seems to be excluded that the members may make essential objections in regard to the organizations and their own person during the subsequent individual trials. If the Tribunal does not measure the responsibility of the entire organization on the basis of the responsibility of the individuals comprising it, the danger of collective liability arises, which would create such a degree of injustice affecting individuals in such a way that it would be much worse than the justly attacked Sippenhaftung of the Third Reich, which in a criminal way aimed at involving innocent members of the family in proceedings taken against any one of its members.

In order to define a criminal organization, evidence and information as to the knowledge, intentions, and actions of the members of the organizations must be provided; similarly, before convicting individuals, either singly or in the mass, justice and human dignity alike demand that they should each be informed of the indictment and should each have an opportunity to be heard in his own defense. This requirement is imperative in view of the serious legal consequence threatening the members of the organizations in case of a verdict against them, such as loss of property, long-term imprisonment, and even the death penalty.

Last but not least, the hearing of all members of the organizations is also necessary because the unrestricted compilation of judicial evidence appears to be inevitable in order to work out the legal definition of criminal character.

The Defense do not ignore the fact that, considering the scope of the Trial, these basic demands are confronted with tremendous difficulties. The scope of the Trial, however, should not reduce the thoroughness of the procedure but, on the contrary, should increase it.

May it please the Tribunal, there are businessmen who are owners of several firms. If, now, the owner uses one of these firms to commit criminal acts, can we say that the other firms and their employees are also criminal? On the basis of this principle, I consider it necessary to point out which organizations, according to the reasons given by the Prosecution so far, are affected by the Indictment as units of the SS. They are:

1. The General SS—strength at the beginning of the war, about 350,000 men. This number includes the variety of special units like cavalry, motor, information, music, and medical units.

2. The Waffen-SS, of which, at the end of the war, there were still under arms about 600,000 men. In the over-all number of Waffen-SS must be included about 36 divisions of the combat troops and a large number of reserve units of the reserve of the Armed Forces, as well as all those who were discharged from the Waffen-SS or who left in some other way. The verdict in this Trial would also affect the honor of the dead and the fate of their surviving relatives, so that the dead also will have to be included in this number which demonstrates the far-reaching significance of this Trial. Consequently, the total number of members of the Waffen-SS, especially when including those discharged as unfit for war service, would be many times larger than the figure representing the final strength.

On the basis of investigations under way the Defense will submit still more accurate figures, unless this is to be done by the Prosecution, which in my opinion ought to submit to the Court the information necessary for a verdict.

3. The Death’s-Head Units—before 1939, about 6,000 men.

4. SS troops for special employment, including the Adolf Hitler Bodyguard—before 1939, about 9,000 men.

5. Honorary Führer of the SS, whose number will probably turn out to be very large, as, for instance, the Farmer Leaders (Bauernführer) of the Reich Food Estate down to the District Farmer Leaders (Kreisbauernführer) were for the most part appointed honorary Führer of the SS. Similar conditions prevail with respect to the chiefs of several branches of the state administration, who were often made honorary Führer of the SS without any initiative on their part and without being able to do anything about it. Likewise many leaders of the Reich Veterans’ League received honorary ranks in the SS.

6. The “supporting members” of the SS, among whom were also many non-Party members; their number is not yet known but it is certainly very considerable.

7. SS Front Line Auxiliaries of the Reich Post Office.

8. SS Construction Units.

9. SS Front laborers.

10. The entire Regular Police, to which belonged:

(a) The Municipal Police of the Reich with several special units, such as traffic squads, accident squads, information, cavalry, police dog squads, radio, and medical units; (b) the Gendarmerie with innumerable stations and posts, distributed all over the country, even in the smallest villages, which had rendered service without essential changes since Napoleon’s time—the motorized Gendarmerie supervised traffic; (c) the Municipal Police of smaller communities; (d) the Water Police; (e) the Fire Police; (f) the Technical Auxiliary Police Units, the Technical Emergency Service. . .

THE PRESIDENT: Dr. Babel, you are going rather fast if you want us to take down these categories.

HERR BABEL: Mr. President, I shall submit a copy to the Tribunal.

THE PRESIDENT: Personally, I prefer to understand the argument when I hear it.

HERR BABEL: I repeat: (f) the Technical Emergency Service, the Compulsory, Industrial, and Voluntary Fire Brigades; (g) Police and Gendarmerie Reserves; (h) the Air Raid Police, with security and auxiliary service; (i) the Town and Country Guard.

Further, there belonged to the Regular Police a great many central institutions, such as the State Hospital for Police, the Police Officers’ Schools, the Technical Police School, the Police Sports and Cavalry Schools, Police and Gendarmerie Schools, the Water Police School and the Reich Fire Brigade School, the Driving and Traffic Schools, the Air Raid Precautions Teaching Staff, the School and Experimental Station for Police Dogs, and the Horse Depot of the Police.

In 1942 all the above-named units of the Regular Police, including the police troop units, totaled about 570,000 men. If we follow the presentation of the Prosecution, then all the groups, institutions, and organizations enumerated so far belong to the SS.

11. All those units of the Security Police which did not belong to the separately indicted Gestapo and SD, that is, offices and officials of the Criminal Police.

12. The Volksdeutsche Mittelstelle.

13. The Offices of the Reich Commissioner for the Preservation of German Nationality.

14. National Political Institutes.

15. The Lebensborn Association.

16. The SS women auxiliaries.

All these groups, institutions, and suborganizations were under the administration and jurisdiction of the SS.

By way of summary, the Defense estimate the group of persons indicted as SS members at several millions. The verdict, however, will also affect the members of the families of all SS members, at least indirectly, so that additional millions will be affected personally, morally, and financially. Since, besides the SS, the mass organizations of the SA and the Leadership Corps are also indicted, a verdict against the indicted organizations would amount to a considerable part of the German nation’s being considered criminal.

According to Law Number 10 of the Control Council, of 20 December 1945, every member may be subject to any penalty, including the death penalty, merely because he was a member of an organization which has been declared criminal.

The question put to discussion by the Court as to what objections can be made in this collective Trial and what objections can be made later in the individual trials has, in my opinion, been decided already by Law Number 10 to the effect that in the individual objections of a defendant, for example, ignorance of the criminal aims of the organization, cannot be given any consideration.

It is, therefore, necessary that evidence in this present Trial should be admitted to the widest extent possible. It should be made possible for the Defense to rebut, by means of evidence of the factual situation at the date of the respective act, the conclusions drawn by the Prosecution retrospectively from individual acts and facts.

When evidence on behalf of the individual defendants was submitted, the Tribunal declared its readiness to admit evidence if there is only the slightest degree of relevancy. Considering the significance of the decision of this Court for the millions of people affected and for their families, it appears to be an absolutely necessary condition that evidence be admitted to the largest extent possible in order to permit a just verdict, to clarify the facts, and especially to find out to what extent members of the SS participated in any criminal acts according to Article 6 of the Charter.

To clarify the question of whether it is permissible to conclude from the fact of the extent of the indicted actions, as maintained by the Prosecution, that the members of the SS had knowledge of these actions, it will also be necessary to admit evidence to the widest extent possible about the question as to whether or not and, if so, to what extent the members of the SS knew of these actions, as well as evidence of the facts which prove that the members of the SS, like the majority of the German people, did not know anything about these matters, owing to the precautions taken to keep them secret.

The discussions initiated by the Tribunal make it necessary to anticipate essential parts of the final pleadings. A ruling by the Tribunal on the question of evidence would at this time signify a ruling by the Tribunal on an essential part of its future decisions, without any hearing of the evidence on the objections of the Defense having taken place. The Charter has a gap, insofar as it has not defined the facts which qualify an organization as criminal. This gap cannot be filled by admitting evidence only in a certain direction. By doing so the Tribunal would anticipate an essential part of its final verdict.

According to what I have said, I believe that it will be necessary for the evidence to include all elements which might influence the decision of the question as to whether the organization of the SS was criminal. This, however, would hardly be possible within the framework of this Trial which, according to the Charter, is to be conducted as expeditiously as feasible. Therefore, I consider it necessary to separate the procedure against the SS and the SD from the trial of the individual defendants.

On 15 January 1946, partly for other reasons, I made a motion for separation. As far as I know, no ruling has yet been given. I repeat this motion as follows:

Judging from the course of the Trial and the procedure up to now, I have come to the opinion that the Indictment against the organizations of the SS and the SD—for which I have been appointed Defense Counsel by an order of the International Military Tribunal of 22 November 1945—and probably against the other indicted organizations also, cannot be dealt with within the framework of this Trial for factual and legal reasons.

1. So far as the legal aspect is concerned, I restrict myself to a few brief points reserving for myself the right to present additional arguments at a later date:

(a) The International Military Tribunal has no jurisdiction. To this point I should like to remark that a few days ago I learned from a newspaper article that the objection of lack of jurisdiction has already been raised during the session of 20 November 1945 and has been overruled by the Court. I asked for a copy of the record of 20 November 1945—and also of the following days—but I have not received it to date. Therefore, I could not take note either of the motion and the reasons given or of the decision of the Tribunal and its reasons.

(b) A criminal procedure against an organization is not possible or permissible, especially against an organization which has been dissolved.

(c) To appoint a Defense Counsel for a dissolved organization, that is, for something non-existing, is not possible and admissible.

2. As to the facts, I am compelled to make more detailed statements in support of my motion.

On 19 November 1945 I was told orally that the International Military Tribunal intended my nomination as counsel for the organization of the Leadership Corps. After discussion I declared in writing my agreement to take over the obligatory defense. On 20 November 1945 I was told orally that I should take over the defense of the organizations of the SS and SD. On 21 November 1945 I was told orally that I had been appointed counsel for the SS and SD, and that I would receive the written appointment very soon. On 23 November 1945 I received the letter of appointment, dated 22 November 1945, and in the English language, and a few days later I received the German translation which I had requested. This letter, in the translation which I received, reads as follows:

“Pursuant to the direction of the International Military
Tribunal you are hereby appointed to serve as counsel in the
case of _United States et al. v. Göring et al._ for the members
of the defendant organizations, the Schutzstaffeln der
Nationalsozialistischen Arbeiterpartei (commonly known as the
SS) and the Sicherheitsdienst (commonly known as the SD), who
may make application to the General Secretary under the order of
the International Military Tribunal attached hereto.”

A few days later a file was handed to me with about 25 letters addressed to the General Secretary of the International Military Tribunal, partly from members of the SS and partly from relatives of such members. When I asked about my position and the position of these applicants in the Trial, I was told orally that these applications were to be submitted by me to the Tribunal in proper form.

On 23 November 1945 there was a conference, during which a number of questions and suggestions were brought up concerning the position and rights of these members of the indicted organizations, who had applied for and been granted leave to be heard, and of the defense counsel provided for them.

From 28 November 1945 until 11 December 1945 I was not able to obtain the applications filed by members of the SS and SD although I asked for them several times each day. At that time about 25 applications were handed to me each day, upon request, and I had to return them in the evening of the same day. I was told every time that the Tribunal needed them and that they had not yet been returned. When I received the folder again on 11 December 1945 the number of petitions had increased considerably.

By notice of 10 December 1945, according to the German translation which I received on 11 December 1945, the Tribunal made known its view that a member of an indicted organization who has applied to be heard on the question of the criminal character of the organization is not to be considered a defendant but will have the individual status of a witness only, although he will be permitted to give evidence; furthermore, that counsel representing any group or organization may, for this group or organization, exercise the rights accorded by the Charter to counsel for individual defendants.

After a closed session of the Court on 11 December 1945, in which counsel for the indicted organizations also took part, the Tribunal by notice of 17 December 1945—of which I did not receive a German translation until a few days later—directed that the respective counsel, that is, counsel for the organizations, should represent only the indicted groups and organizations and not individual applicants.

Not until this date was the extent of my duties unambiguously stated and defined.

THE PRESIDENT: The Tribunal would like to know what your application now is. The object of this session is to have an argument from Counsel for the Prosecution and Counsel for the Defense in order that the legal questions with reference to these organizations should be clear, and what your personal experience during November and December of 1945 has to do with it the Tribunal is unable to see.

HERR BABEL: Mr. President, before I started reading this motion, I pointed out that already on 15 January of this year I made a motion to separate the procedure, and to my knowledge no ruling has yet been given. I have tried to repeat in part the reasons for this motion which I made at the time. If the Court does not think it desirable or necessary, I shall refrain from doing so.

THE PRESIDENT: I don’t see any relevance in what you have been reading to us now, either to the question of whether there should be a separate trial or to any other questions with reference to the criminal organizations.

HERR BABEL: Mr. President, under these circumstances I shall not read those further arguments, which may be known to the Court from my written motion, and I shall come to the conclusion of what I still wish to say.

THE PRESIDENT: Dr. Babel, the Court will, of course, consider the suggestion which has been made, I think, by other counsel for the organizations as well as the suggestion which I understand you are now making, that it is necessary to have a separate trial. The Court will consider that. But what you have been saying to us does not appear to me to have any relevance to that.

HERR BABEL: Mr. President, in my former motion I merely wanted to point out the difficulties I had—since I was still alone and had no assistance—before I was in a position to devote myself to my real assignment; for that reason also, in my opinion, my motion for separating the trial was well founded at that time. Part, or the greater part, of what I said then has been repeated now. What I have read just now, and the remainder of my motion, might have more significance today, but I shall refrain from reading it, since the question of the separation of the trial has already been brought up and argued by others. Therefore, for the rest, I can also join in the arguments brought forward by my colleagues in this regard. In this connection I should like to point out that on 19 January 1946 I made a motion to be relieved of the defense of the SD because of conflicting interests.

I believe I ought to call this to your attention as I do not plead today for the SD, because I have been waiting for a ruling on my motion. I reserve for myself the right to make further statements after I receive a copy of the record of 28 February, in particular on the question of the membership of individuals and groups of persons in the SS, on the definition of the lines of demarcation between the SS and the governmental sector, on limitations as to periods and organizations, on the question of voluntary membership, on limitation of responsibility for other reasons according to criminal law, and on the jurisdiction of the SS courts.

In view of the tremendous amount of work which I had to do so far, I have to this date not yet been able to take a stand on all these points. I wish to make the remark that the suggestions made by the Prosecution and several of the Defense Counsel as to the presentation of evidence seem untenable to me. They would entail a considerable restricting of the Defense. To carry them out seems to be impossible also for reasons of time.

This concludes my argument.

THE PRESIDENT: The Tribunal will now adjourn.

[_The Tribunal recessed until 1400 hours._]

_Afternoon Session_

THE PRESIDENT: The Tribunal has decided to alter the order of procedure, and they will therefore not sit in open session tomorrow but sit in closed session tomorrow, Saturday; and sit on Monday in order to hear the applications for witnesses and documents by the next four defendants in order.

Now, there is another counsel for the organizations to be heard, is there not?

DR. LATERNSER: The main subject of the discussion which, by request of the Tribunal, has taken place today and yesterday is the question as to what is relevant evidence in the case against the indicted organizations.

As a preliminary question the concept of the criminal organization in particular must be clarified. Consequently it is not the task of counsel for the organizations to plead in detail; that should be reserved for the later final address by Defense Counsel, but rather the subject of discussion is definitely limited, as far as the Defense is concerned, to the above-mentioned question of the relevancy of evidence and also to certain fundamental issues which must be touched upon in order to judge the relevancy of evidence.

According to the sequence provided by the Indictment, our colleague Dr. Kubuschok spoke first as defense counsel for the Reich Government. In his address he dealt with the general issues in compliance with Point Number 1 of the decision of the Tribunal of 14 January 1946. In order to avoid unnecessary repetition, I should like to make the legal arguments of my colleague Kubuschok, to their full extent, part of my own argument. At the same time I submit the request that the Tribunal pay particular attention to the contents of these arguments presented yesterday.

With regard to the definition of the concept “criminal organization,” I should like to make a few short remarks and additional statements. It is obviously a well-considered provision of the Charter that the Tribunal can declare the indicted organizations criminal; it is thus not obliged to do so but can exercise its free and conscientious judgment.

If the Tribunal comes to the conclusion that the declaration of the group as criminal can or has to lead to impossible, untenable, and unjust consequences, then the rejection of the Prosecution’s demand would as a matter of course be mandatory.

It has already been stated by those who have just spoken what grave legal consequences would result, as far as the members are concerned, from a declaration of the criminality of the groups and how the undoubtedly vast number of innocent members would also be affected by that declaration. As far as these consequences for the members are concerned, it cannot be emphasized strongly enough that all the members of the groups and organizations will be affected directly by a declaration of criminality, insofar as by the verdict of the Tribunal it would irrefutably be established that they are accused of a crime, namely, the crime of having belonged to a group or organization which has been declared criminal. That this membership is a crime already follows clearly from Articles 10 and 11 of the Charter. In Article 10 it is stated that the competent courts of the individual occupation zones have the right to put all members on trial because of their membership in groups or organizations which have been declared criminal.

It is further enacted that in those trials the criminal nature of the group or organization shall not be questioned. Thus, the members can be indicted because of membership in the group or organization; and, if every indictment before a court can, of course, deal only with a crime, then it is already established that membership in the group or organization is a crime. Furthermore, in Article 11 of the Charter membership in a group or organization declared criminal is specifically designated a crime. That follows from the very words of the article, which reads: “. . . with a crime other than of membership in a criminal group or organization. . . .”

In the same way in the law of 20 December 1945, issued to implement the Charter, membership in a group or organization declared criminal is specifically declared a crime. Consequently the finding of the criminal character of the group or organization by the Tribunal will state with immediate effect that all members, because of their membership in the group or organization, have committed a crime, and this must necessarily lead to untenable consequences.

It is not correct to say that these members can exculpate themselves in the subsequent trials before the individual military courts. If mere membership in the organization is defined as a crime, they can take exception to the charged guilt only by declaring that they were not members of the group or organization.

If Justice Jackson is of the opinion that in the subsequent trials they could plead that they had become members under duress or by fraud, the admissibility of this plea nevertheless seems to be highly questionable.

Justice Jackson himself pointed out that a plea of personal or economic disadvantages cannot serve as grounds for duress. What other kind of duress could be considered relevant? According to German criminal law only physical coercion would be left for consideration, and that only for the period of its duration. In this case also fear of personal or economic disadvantage is no ground for exculpation as far as remaining in the group or organization later on is concerned.

Thus a member of a group or organization declared criminal has in the subsequent trial only the possibility of pleading certain extenuating circumstances which might influence the degree of penalty. The question is now whether, according to the principles of justice, these inevitable consequences are tolerable; so far as innocent members are concerned, this question can be definitely answered only in the negative.

Justice Jackson is further of the opinion that there probably are no innocent members of the organizations concerned, because it is simply incomprehensible to sound common sense that anyone joined the indicted groups or organizations without having known from the very beginning, or at least very soon after, what aims and methods these groups and organizations were pursuing.

This point of view may appear comprehensible to the retrospective observer, after the crimes charged to the groups and organizations have collectively been brought to light. That the mental attitude of the members to the aims and tasks was or could have been entirely different at that time cannot be doubted by anyone.

If one were to subscribe to Justice Jackson’s interpretation, then the provision of Article 9 of the Charter providing for a hearing of members on the question of the criminal character of the organizations would make no sense at all. It would then be entirely superfluous to admit any sort of evidence in respect to this, and it would furthermore be unnecessary to discuss the criminal character, as the Tribunal itself has suggested.

If we follow the Prosecutor’s line of thought that, according to sound common sense, it is obvious that all the members took part in the crimes mentioned in Article 6 of the Charter, then the provisions regarding the Common Plan or Conspiracy would suffice altogether as grounds for prosecuting and punishing these members who, without exception, are to be considered guilty. In this case the structure of the declaration of criminality and the stipulation of its consequences would in no way have been necessary.

From the following deliberation it is to be inferred that the declaration of the criminality of the organizations is not necessary and can be dispensed with altogether.

Justice Jackson declared that, of course, no one intended an indictment of the innumerable members of the groups and organizations, which would result in a flood of trials which could not possibly be dealt with in one generation. What will be done is to seek out and find only those who are actually guilty and have them brought to trial.

Thus it is not in any way necessary to create such a large circle of members through the declaration of criminality and to select the guilty from this circle. This selection can take place without creating this circle. That in a group or organization of many members there were obviously a number of innocent members is a fact of common experience which cannot be disputed, and this thought is taken into consideration not only by the Charter, but also by the Prosecution in that they want to exempt from one of the organizations the category of those with low-grade routine tasks, obviously because of the conviction that these had nothing to do with crimes, for otherwise they would have been members of or participants in the criminal conspiracy.

Besides this category, however, a number of other members come into consideration whom one cannot speak of as guilty in the legal sense of the term; for instance, those people who did not give any thought at all to the aims of the group. All these people would of necessity not only be dishonored by a declaration of the criminality of the group or organization but, if indicted, would also be punishable because of mere membership. Incidentally it might be mentioned that eventually their economic existence would be menaced or destroyed because of their membership in the group or organization and the defamation brought about by the declaration of criminality.

But again it must be asked whether all these consequences have been weighed and can be justified in view of the basic principle of all criminal law systems, according to which only the guilty are to be punished, and in view of the principle of substantive justice. That ought to be answered in the negative all the more if these members who would necessarily be affected by the verdict of the Tribunal were not granted any legal hearing in this Trial.

It has already been pointed out that granting a legal hearing to the vast majority of the members is unfeasible for technical reasons. Thus the unique situation arises that the Tribunal would pass verdict on all those members without knowing whether or not numerous innocent members would be affected thereby.

If Justice Jackson further pointed out that the issue under dispute is nothing new, but can be found in the penal codes of all other states and in particular also in Germany, this view likewise can in no wise be supported. The German laws and precedents quoted are of a character entirely different from the structure of the Charter.

In Germany, as in almost all other states, the punishment of groups and organizations is not known at all, only the punishment of individuals is known. No German judgment has yet been passed by which a group or organization as such was subjected to penalty or was declared criminal. It is very well possible, though, that in the trials against members of criminal organizations the criminal character of the organization was stated in the opinion. This statement, however, had effect only on the convicted members and not on other members who were neither indicted nor convicted.

The provisions quoted of Articles 128 and 129 of the German Penal Code are provisions which corroborate exactly the view of the Defense, because they threaten only the participants in an illegal association with penalties and not the association itself. Also, the French laws quoted deal merely with the threat of punishment for participation and membership in certain associations with punishable pursuits. A possibility for declaring the association itself criminal is not to be found in these legal sources either.

The French Prosecutor quoted, first of all, Articles 265 and 266 of the Penal Code. The first provision forbids the forming of associations with a punishable pursuit; the second subjects only the participants to penalty. Likewise, the French law concerning armed groups and private militia, of 10 January 1936, provides only for the punishment of the participants. The same is true of the other law quoted, that of 26 August 1944, which provides only for individual responsibility. None of the above-mentioned laws allows the punishment of organizations. Consequently, they can support only the legal view of the Defense.

If in England and America—as exceptions—associations as such can be punished, that can be done only on account of certain groups of offenses and only to the effect that either the dissolution of the corporation may be pronounced or fines imposed. Naturally in such proceedings it is a necessary condition for the Prosecution and the Defense that the corporation as such be represented during the proceedings by its functionaries and representatives and be able to defend itself; whereas in this Trial the groups and organizations as such are summoned before the Court, although they do not exist any longer and although their functionaries are absent.

It has never been the case in any country that groups and organizations are declared guilty or criminal and that on the basis of this declaration of the Court all members of the groups or organizations can be or must be indicted and punished because of their mere membership. This is the completely novel and odd feature which stands in contrast to the existing law of any country.

I believe it is permissible to say that neither England nor America would ever be willing to pass such a law for their own population. If all this proves that the declaration of criminality demanded must automatically result in grave and completely untenable consequences as demonstrated, then the demand of the Prosecution should be denied in the name of justice. The Charter, which in no way obliges the Tribunal to make such a declaration, would also not be violated thereby. In this way an injustice which could only injure the integrity of the judgment of the Tribunal in the eyes of our contemporaries and of posterity would be avoided.

My arguments lead to the following conclusion:

1. The Tribunal should, because of the legal arguments presented, as a matter of principle, refuse to declare any group or organization criminal; it is within the Tribunal’s power to do so.

2. If this is not done, the concept of the criminal organization must be so defined that the innocent members are protected from serious consequences. This can be done only by means of a definition, as suggested yesterday by my colleague, Kubuschok. Accordingly, those subjects of evidence proposed by him should also be admitted if they are not _a priori_ irrelevant because of the fact that, for legal reasons, the Prosecution’s demand of a verdict against the groups and organizations cannot be granted. It is necessary that the following additional evidence be admitted for the group of the General Staff and the OKW, which I represent:

(1) The group included under the designation “General Staff and OKW” is not such a group and is not an organization. My explanation of this subject of proof is as follows:

(a) Justice Jackson is of the opinion that the concept of “group” is more comprehensive than that of “organization,” that it does not have to be defined but can be understood by common sense. To this I must object that those who occupied the highest and the higher command posts represent the heads of a military hierarchy as it is to be found in every army in the world. There was no relationship whatsoever evident among the members of this group. Nor can such relations be assumed merely because of the official connections between the various offices or because of the channels which actually existed. Moreover, since the circle of people whom the Prosecution wish to include in this group is admittedly composed in a completely arbitrary way, simply on the basis of official positions occupied within a period of 8 years, there is no evident tie which could justify the assumption of the existence of a group. But to form a group it is absolutely necessary to have some connecting element in addition to the purely official contact between offices.

(b) Aside from the Chiefs of the General Staffs of the Army and the Air Force, none of the individual persons in the group belonged to the General Staff. The German General Staff of the Army and the Air Force—the Navy had no admiral staff—was headed by the Chief of the General Staff and consisted of the General Staff officers who acted as operational assistants to the higher military leaders. For these reasons the designation or name given by the Prosecution to this fictitious group under indictment is false and misleading as well.

(2) The following subject of evidence, in addition to those advanced by my colleague, Kubuschok, should be admitted for the group of the General Staff and OKW: The holders of the offices forming the group did not join a group voluntarily, nor did they remain in it voluntarily. The admission of this subject of evidence is necessary for the following reasons: Justice Jackson stated yesterday that joining a group, or membership in it, must be voluntary. This condition is not present in the case of the group which I represent. The vast majority of the indicted higher military leaders had come from the Imperial Army and Navy; all of them had served in the Reichswehr long before 1933. They did not join any group, but were officers of the Armed Forces and got their positions, which they were not at liberty to choose, only on the basis of their military achievements. They also were not at liberty to withdraw from these positions without violating their duty of military obedience.

(3) All evidence is to be admitted which refers to the charge against the group of the General Staff and the OKW as contained in the summary of arguments. Evidence on these points could be presented in the following way:

(1) A number of people concerned should make sworn affidavits from the contents of which conclusions could be drawn regarding the typical attitude of a certain number of those involved. (2) Some typical representatives of the group ought to testify before this Court about the subjects of evidence submitted. (3) Every other sort of evidence having some probative value should be admitted to the extent necessary.

We request that this evidence should be admitted at present to a full extent for the time being without prejudice to a subsequent decision on the weight of this evidence, just as Justice Jackson suggested the same thing on 14 December 1945 with regard to the evidence offered by the Prosecution, for at present a binding decision on the relevancy of the evidence offered cannot be reached.

Whether this evidence is necessary at all and whether or not and to what extent it is relevant depends on the following: (1) Whether the Tribunal, following the arguments of justice and fairness as submitted and by authority of the power given it, will decline to declare these groups and organizations criminal. (2) Or, if this is not done, in what way it defines the concept of criminal groups and organizations. These two points cannot be definitely decided at present, since there is still a great deal to be said about these thoroughly difficult and significant and completely novel problems, as well as about the impressive address delivered by Justice Jackson. One of my colleagues has undertaken to work out a comprehensive memorandum on all these problems and questions which will be ready in about two or three weeks. I request that additional arguments pertaining thereto be reserved for me and my colleagues at that time.

One last point: The Tribunal ought also to reach a ruling as to what is to be done about the last word for the organizations.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal would be glad to hear you in reply.

MR. JUSTICE JACKSON: I think there is not much that I care to say in reply, but there are one or two points which I would like to cover. It has been suggested that there be a separation of the trial of the issues as to the organizations from the Trial now pending. I think that is impossible under the Charter. I think the Trial must proceed as a unit. Of course, it is possible to take up at separate times different parts of the Trial, but the jurisdiction conferred by Article 9 for the trial of organizations is limited.

It is at the trial of any individual member, of any group, _et cetera_, that this decision must be reached and it must be in connection with any act of which the individual may be convicted. So I think that any separation, in anything more than a mere separation of days or separation of weeks of our time, is impossible.

I find some difficulty in understanding the argument which has been advanced by several of the representatives of the organizations that there would be some great injustice in dishonoring the members of these organizations or branding the members of these organizations with the declaration of criminality. I should have thought that if they were not already dishonored by the evidence that has been produced here, dishonor would be difficult to achieve by mere words of the declaration. It isn’t we who are dishonoring the members of those organizations. It is the evidence in this case, originating largely with these defendants, that may well bring dishonor to the members of these organizations. But the very purpose of this organizational investigation is to determine that part of German society which did actively participate in the promulgation of these offenses and that those elements may be condemned; and, of course, if it carries some discredit with it, I think we must say that the discredit was not originated by any of our countries; the dishonor originated mainly with those in this dock, together with those whom the fortunes of war have removed from our reach.

There seems to be some misunderstanding as to just what we mean, or at least we do not agree as to what is to be meant by treating these organizations as generally voluntary. The test which has been advanced by the counsel for the organizations would, it seems to me, completely nullify any practicable procedure.

Now let us contrast the Wehrmacht and the SS to get at what I mean by regarding an organization as generally voluntary. The Wehrmacht was generally a conscript organization, but it may have had a good many volunteers in it. I do not think we would be justified, because there were volunteers, in calling the Wehrmacht a voluntary organization. The SS, on the other hand, was generally a voluntary organization, but it did have some conscripts, and I do not think it would be any more just to carry the SS into the class of conscript organizations because of a few members than it would to classify the Wehrmacht as _voluntary_ because of a few members. In other words, in neither case would we be justified in allowing, as we might say, the “tail to wag the dog.” It is a question of the general character of the over-all organization that decides what these organizations are.

Now, of course, if the Tribunal saw fit to say that its declaration was not intended to apply to any groups, sections, or individuals who were conscripts, that is one thing. I have no quarrel with that. From the very beginning I have insisted that of course we were not trying to reach conscripts. But if you sit here week after week determining who is a conscript and just where that principle leads, that, I think, would be quite apart from what we ought to do here.

A great deal of argument is addressed to the fact that proof is lacking—or that here should be stronger proof—that these organizations’ real criminality was known to the members; and the inference seems to be that we must prove that every member—or, at least—that we cannot hold members who did not know this criminal program on the part of these organizations. I think this gets into a question, perhaps, of the sufficiency of proof rather than one of principle, but it seems to me again that we have the common sense division.

If someone organized a literary society for the study of German literature and accumulated some funds and had a home, a house, and some of the defendants became its officers and secretly diverted its funds to a criminal purpose, while all the time to the public it was presenting only the appearance of being a literary society, it might very well be that a member should not be held unless we proved actual knowledge. Or, if a labor union, ostensibly for the purpose of improving the welfare of its members, has its funds or properties or the prestige of its name diverted by those who happened to gain control of it to criminal purposes, then you have a situation where the members might not be chargeable with knowledge.

But when I speak of knowledge sufficient to charge members, as I did, I do not mean the state of mind of each individual member. That would be an absurd test in any court of law. In the first place, it is never a satisfactory thing to explore the state of mind of an individual; and, in the second place, it is impossible to explore the state of mind of a million individuals. So we might as well drop this from consideration, if that were to be the test.

But let us look at this over-all program. How did these few men who were the heads of this Nazi regime kill 5 million Jews, as they boast they did? Now, they didn’t do it with their hands; and it took disciplined, organized, systematic manpower to do it. That manpower wasn’t casually assembled. It was organized, directed, and used. Can the killing of 5 million Jews in Europe be a secret? Weren’t the concentration camps known in every one of our countries? Were they not a byword in every land in the world—the German concentration camps—and yet we have to hear that the German people themselves had no knowledge about it.

Our public officials were protesting against the slaughter of Jews diplomatically and in every other way, and yet we are told this was a secret in Germany. The name of the Gestapo was known throughout the world, and there isn’t a man among counsel who would not have turned white if, in the night at his door, someone rapped and said he was representing the Gestapo. The name of that organization was known—unless we are to assume that it was singularly secret in Germany, but known to the rest of the world.