Nazi Conspiracy & Aggression
E. Further Steps Before This Tribunal.
Over 45,000 persons have joined in communications to this
Tribunal asking to be heard in connection with the
accusations against organizations. The volume of these
applications has caused apprehension as to further
proceedings. No doubt there are difficulties yet to be
overcome, but my study indicates that the difficulties are
greatly exaggerated.
The Tribunal is vested with wide discretion as to whether it
ill entertain an application to be heard. The Prosecution
would be anxious, of course, to have every application
granted that is necessary, not only to do justice but to
avoid the appearance of doing anything less than justice.
And we do not consider that expediting this trial is so
important as affording a fair Opportunity to present all
really pertinent facts.
Analysis of the conditions which have brought about this
flood of applications indicates that their significance is
not proportionate to their numbers. The Tribunal sent out
200,000 printed notices of the right to appear before it and
defend. They ere sent to Allied prisoner of war and
internment camps. The notice was published in all German
language papers and was repeatedly broadcast over the radio.
The 45,000 persons who responded with applications to be
heard came principally from out 15 prisoner of war and
internment camps in British or United States control. Those
received included an approximate 2000 from Dachau, 10,000
from Langwasser, 7,500 from Auer-
[Page 20]
bach, 4,000 from Staumuehle, 2,500 from Garmisch, and
several hundred from each of the others.
We undertook investigation of these applications from
Auerbach camp as probably typical of all. The camp is for
prisoners of war, predominantly SS members, and its
prisoners number 16,964 enlisted men and 923 officers. The
notice of the International Tribunal was posted in each
barracks and was read to all inmates. The applications to
the Tribunal were forwarded without censorship. Applications
to defend were made by 7,509 SS members.
Investigation indicates that these were filed in direct
response to the notice and that no action was directed or
inspired from any other source within the camp. All who were
interrogated professed no knowledge of any SS crimes or of
SS criminal purpose, but expressed interest only in their
individual fate. Our investigators report no indication that
the SS members had additional evidence or information to
submit 'on the general question of the criminality of the SS
as an organization. They seemed to think it necessary to
make the application to this Tribunal in order to protect
themselves.
Examination of the applications made to the Tribunal
indicates that most members do not profess to have evidence
on the general issue triable here. They assert that the
writer has neither committed, witnessed, nor known of the
crimes charged against the organization. On a proper
definition of the issues such an application is insufficient
on its face.
A careful examination of the Tribunal's notice to which
these applications respond will indicate that the notice
contains no word which would inform a member, particularly
if a layman, of the narrowness of the issues here, or of the
later opportunity of each member, if and when prosecuted, to
present personal defenses. On the other hand, I think the
notice creates the impression that every member may be
convicted and punished by this Tribunal and that his only
chance to be heard is here.
In view of these facts we suggest consideration of the
following program for completion of this trial as to
organizations.
1. That the Tribunal formulate and express in an order the
scope of the issues and the limitations on the issues to be
heard by it.
2. That a notice adequately informing members as to the
limitation on issues and the opportunity for later,
individual trial, be sent to all applicants and published as
was the original notice.
3. That a panel of masters be appointed as authorized in
[Page 21]
Article 17(e) of the Charter to examine applications and
report those insufficient on their own statements, and to go
to the camps and' supervise the taking of any relevant
evidence. Defense counsel and prosecution representatives
should of course attend and be heard before the masters. The
masters should reduce any evidence to deposition form and
report the whole to the Tribunal to be introduced as a part
of its record.
4. The representative principle may also be employed to
simplify this task. Members of particular organizations in
particular camps might well be invited to choose one or more
to represent them in presenting evidence.
It may not be untimely to remind the Tribunal and defense
counsel that the prosecution has omitted from evidence many
relevant documents which show repetition of crimes by these
organizations in order to save time by avoiding cumulative
evidence. It is not too much to expect that cumulative
evidence of a negative character will likewise be limited.
Some concern has been expressed as to the number of persons
who might be affected by the declarations of criminality we
have asked. Some people seem more susceptible to the shock
of a million punishments than to the shock of 5 million
murders. At most the number of punishments will never catch
up with the number of crimes. However, it is impossible to
state even with approximate accuracy the number of persons
who might be affected. Figures from German sources seriously
exaggerate the number, because they do not take account of
heavy casualties in the latter part of the war, and make no
allowances for duplication of membership, which was large.
For example, the evidence is to the effect that 75 percent
of the Gestapo men also were members of the SS. We know that
the United States forces have in detention a roughly
estimated 130,000 persons who appear to be members of
accused organizations. I have no figures from other Allied
forces. But how many of these actually would be prosecuted,
instead of being dealt with under the denazification
program, no one can foretell. Whatever the number, of one
thing we may be sure: it is so large that a thorough inquiry
by this Tribunal, into each case, would prolong its session
beyond endurance. All questions as to whether individuals or
sub-groups of accused organizations should be excepted from
the Declaration of Criminality, should be left for local
courts, located near the me of the accused and near sources
of evidence. These courts an work in one or at most in two
languages, instead of four, and ear evidence which both
parties direct to the specific issues.
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Volume
II Chapter XV
Criminality of Groups and Organizations
The Law
Under Which the Nazi Organizations
Are Accused of Being Criminal
(Part 6 of 7)