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

Seventieth Day: Thursday, 28th February, 1946
(Part 8 of 9)

[DR. KUBUSCHOK continues]

[Page 65]

One way of achieving this would be an exact interrogation of the individual members at the places where - this would apply to most of the organizations - at present large numbers of them are being kept in internment in the various camps. We believe that the best way to investigate individual cases, and the one

[Page 65]

most suitable to the Court, would be to assign this work to one or more suitable spokesman in each camp, that is to say, of course, under the supervision and with the assistance of the defence counsel or their assistants, and then bring these spokesmen before the Court as witnesses so that they may give a picture of the activity and attitude of the individual members.

We believe that the way to get as clearly and conscientiously presented a picture as possible would be for these spokesmen to get from the inmates of the camps affidavits about the main points of indictment which have been specified by the prosecution.

The spokesmen could then, as witnesses, say under oath what percentage, on the basis of these affidavits of the individual inmates of the camps, had taken part in the criminal actions mentioned in the Indictment or had known anything about them. Certainly there are various difficulties connected with this which will also have to be considered.

In order to get a true picture, one will have to relieve the individual inmates of the suspicion that, through a truthful testimony submitted to the prosecution, they might be offering material which could be used against them personally.

We consider it, therefore, necessary that in so far as these affidavits are to be presented to the Court as documentary evidence, the prosecution should make a statement that this material will not be used for the purpose of criminal proceedings against persons. This statement would naturally not involve any immunity for individual members; but the individual inmate of the camp would be assured that the affidavit made by him under oath did not establish his guilt as far as future criminal proceedings are concerned.

If the prosecution does not want to accept this proposal, there would still the possibility, without submitting these documents, of using the testimony of the spokesmen, who could give information as to the percentage of the people who took or did not take part in criminal activities or plans.

THE PRESIDENT: Since you have not finished, I think we had better adjourn for ten minutes.

(A recess was taken.)

DR. KUBUSCHOK: Before the recess I referred to a suggestion for getting information about the actions and the attitude of the members by means of typical facts.

This taking of evidence would have, for practical purposes, to extend to a sufficient number of camps in all the zones of occupation. From the results of this taking of evidence a conclusion could then be drawn, on the basis of what is found to be typical, as to the criminal activity and attitude of the individual member of the organization, and at the same time, a conclusion as to whether or not the organization had a criminal nature.

If the prosecution is in agreement with the defence so far, I believe that I have perhaps found in this way a means of collecting the relevant evidence, including all positive and negative elements.

To the extent that the hearing of inmates of camps does not suffice, which might be true of the one organization or the other, the hearing of members of the organization who are not in custody might have to be considered. Here, too, a proper way could probably be found which would likewise make possible and easier the execution of the tasks of the Tribunal.

DR. SERVATIUS (counsel for the Leadership Corps): I should like to take a stand too on the questions now being discussed before the Court. I am not at present in a position to take a stand on the profound and well-presented statements which Mr. Justice Jackson has made here. I should like to make a brief, but not less carefully thought-out answer; but the Court will understand that I and a number of my colleagues desire to put our case, after studying the material and the legal aspect. Perhaps the Tribunal will give us the opportunity to do this very shortly.

[Page 66]

I should like now to take up these questions along more technical lines, in order to fulfil my duty, and on behalf of the defence to take a clear stand on these particular questions.

In the first question, it was asked what evidence was to be admitted and what particular evidence should be presented here in the main trial before this Tribunal.

The answer is this, that all evidence is relevant which is of significance for the determination of criminality. If one examines the concept "criminal" it is seen that there is no factual situation as defined by criminal law, nor can there be any, for it is not a question of determining the factual elements but rather of a judgement as to whether an act is criminal in the same way as judgement as to whether something is good or bad. Consequently, the Charter does not oblige the Tribunal to pass sentence and declare such-and- such to be criminal, but rather it states that the Tribunal may pass such a sentence, but not that it must reach such a decision.

It can thus be seen that the Tribunal is here confronted with a task which is basically different from the activity of a judge. A judge is obliged, when certain facts determined by law are put before him, to pass sentence, but this Tribunal is to determine the culpability of a set of facts, on the basis of which the judge will later pass sentence.

Such a task is, however, that of a legislator and not of a judge. The Tribunal here determines what is deserving of punishment and thereby creates a law. In this way the Tribunal also creates that basis for the procedure which Mr. Justice Jackson mentioned in a former address of his - the basis for procedure in the subsequent individual trials.

It is this basis for procedure which the legislator gives to the judge who is to deliver judgement. In such a case the burden of proof is likewise reversed, as Mr. Justice Jackson also has constantly mentioned. It is as if a thief were before the Court - his objection that theft is not punishable, that "possession is theft," would be questioned.

That the activity of this Tribunal is legislative can also be seen from the fact that, without setting up the Tribunal, the signatory powers could just as successfully have determined that all members of organizations could be brought before a court because of their membership.

Law No. 10 of the Allied Control Council, that has often been mentioned today, corroborates this interpretation, since it constitutes the law for carrying out the skeleton law expected of this Tribunal. The examples of the criminal nature of the organizations that have been given here in Mr. Justice Jackson's address today, show again and again that it is a question of laws and not of judgements.

It is also characteristic of the legislative function, that in all discussions considerations of expediency take first place, and Mr. Justice Jackson asked in a previous statement that the verdict should provide the means to proceed against the members of the organizations.

It is seen that the Court must deal with de lege ferenda considerations on an ethical basis. But it must be proved that the members of the organizations are punishable, and "punishable" is equivalent to "criminal." In order to determine the factual elements, the judgement brings evidence. As legislator, the Tribunal must collect the material for legislation. The judge can, on the basis of the legally proscribed criteria, easily determine what is relevant as proof of these criteria and what he therefore must admit as proof.

It is characteristic that such a determination here in this matter creates difficulties. The legislator proceeds differently from the judge. He studies the facts to see if they deserve punishment, and for him all those facts are relevant which are of significance for the contents of his law.

In this matter he must have an overall picture of the entire problem and must take into consideration both the good and bad aspect of the matter to be judged.

[Page 67]

The basic principle of justice is that only the guilty be punished. If the legislator wishes to achieve this, he must examine whether only guilty people will be affected by his laws. He must, therefore, also investigate the objections which any person affected by his law might make. The innocent person is protected in this way, that in the individual case the guilt of the individual must be proved unless the legislator actually has in mind responsibility without guilt.

Every killing of a human being is punishable, but whether the person is guilty has to be proved. He can avail himself of the so-called objection that the death was not intentional. If the legislator does not want to permit such an objection, then he must himself examine the material that leads to such an extraordinary measure. The extent of the material to be examined, that is, the taking of evidence, depends on the contents of the law that is to be passed. Inasmuch as in the subsequent individual trials all objections remain open, the Tribunal does not have to concern itself with them. But the Tribunal must consider to what extent the innocent persons in the individual trial will have legal guarantees which protect them from an unjust punishment. It is absolutely necessary for the Tribunal also to examine every submission, which the individual member cannot bring in the subsequent proceedings.

In anticipation of these powers of the Tribunal, it has already been determined by Article No. 10 mentioned above, that every member can be punished. Thereby these punishments, of which we have heard in the previous speeches, have already been determined. It thus appears as if the Tribunal could only pass a judgement en bloc without having any right to modify it, and consequently without possessing any influence on the legal effect of its verdict. But such a concept is in contradiction to the basic idea of the Yalta conference, which was that of transferring to the Tribunal the legislative powers of the signatories, with the express purpose of vindicating this principle of justice, namely, that only the guilty be punished, on the basis of examination of the facts through the hearing of the members in question.

Consequently the Tribunal must have a right to determine in individual cases the basic conditions for the punishment and to determine the objections which should remain open to the individual; and the Tribunal must also be able to limit the effect of its judgement by regulation of the punishments.

I believe that Mr. Justice Jackson expressed an opinion today which does not contradict this.

According to the sense of the Charter, the Tribunal is not permitted to transfer its responsibility to the individual Courts by simply leaving for all practical purposes the decision to these Courts, which because of their composition may have quite different legal views.

The members of the organizations have been granted that very right to be heard here before the International Military Tribunal, particularly because of the significance of the judgement which in all cases contains a grave moral condemnation. To what extent then should the Tribunal concern itself with the material for this taking of evidence? I believe that the Tribunal, in order to determine what is deserving of punishment, must investigate that which is typical, while the purely individual can be left to the subsequent proceedings.

But this separation of the typical from the individual is not easy, for the submission of the members often has a double significance. Thus the submission of a member that he did not know about the criminal nature of the organization could mean, on the one hand, that such purpose never existed or, on the other hand, that the member had no knowledge of that purpose which was really there.

The first is an objection which concerns the organization, the second a purely personal objection.

On the basis of these arguments I should like to answer the Tribunal's first question as follows:

The factual elements of criminality as defined by criminal law cannot be found

[Page 68]

here; the determination of criminality is the determination of punishability as a legislative task of the Tribunal. Examination of evidence in the procedural sense is in reality the examination of the legislative material including the objections of the members of the groups and organizations. To what extent the Tribunal itself must examine the material depends on the scope and the effect which it intends to give, and which it is able to give, to the verdict. Only that which is not typical and which is not of importance as far as de lege ferenda considerations are concerned, only that can be left to the individual trials.

To questions two and three. Under points two and three the Tribunal puts a question regarding the limiting of the groups of members and the limiting of the length of time of the criminality. Both questions touch the same problem, namely, whether such a limitation is a motion on the part of the prosecution or whether the Tribunal itself can limit the contents of its verdict.

I believe Mr. Justice Jackson today expressed the opinion that the Tribunal has the power to make such a limitation. But as regards the Political Leadership, the prosecution reserves to itself the right, in the case of a limitation of the groups of members, as proposed by it later, to introduce other trials against these members who are now being excluded or to take other measures.

However, such a right is not given to the prosecution in the Charter. It also stands in contradiction to the natural powers of the Tribunal to include in its decision an acquittal - a power which cannot be eliminated by reservation - made by the prosecution. The evidence to be examined also cannot be limited through such a limitation as proposed, for the judgement delivered on the indicted organizations must include these organizations as a whole. It is not permissible to seize upon merely the criminal elements of groups who represent a period which was not typical, and then, despite this, declare the organization criminal.

That which is to be considered a group or an organization does not depend on the discretion of the. prosecution, as is also seen in Article 9, Paragraph 1 of the Charter, according to which the criminal character must stand in some relationship to the acts of one of the main defendants.

This can only be understood to mean that the organization, in its membership and in respect to time, must be influenced by the actions of one of the major defendants. However, this is not for the prosecution but for the Tribunal to decide.

Accordingly, I should like to answer questions two and three as follows:

Question two: A limiting of the incriminating period does not depend on a motion of the prosecution. The Tribunal itself can and must limit the length of time, if the organizations or groups were not deserving of punishment throughout the whole period of their existence. If the actions of the main defendant, as a member of the organization, were not incriminating during the whole period of the existence of the organization, then such a limitation must follow.

Question three: For the limiting of the groups of members the same applies as for the limiting of the period of time.

The Tribunal can, on its own authority, limit the effect that its verdict will have in the case of all groups and organizations. It must undertake this limitation if the actions of the main defendant in his capacity as a member of the organization are not such as to incriminate certain groups of members. A limitation of the indictment or of the effect of the verdict does not limit the material evidence which is the basis of the judgement.

These were the remarks I wanted to make in answer to the questions of the Tribunal. I should like now merely to take a stand on a question that has also been brought up today; namely, the application for a legal hearing; if the Tribunal permits me to discuss this question. According to Article 10 of the Charter, every member of an organization can be brought to trial, if the organization has been declared criminal. The decision is left to the Tribunal. The essential task of the Tribunal is the hearing of the members. Without this hearing a sentence is

[Page 69]

not possible. That is the basic condition, without which the proceedings cannot be carried out. So far the defence has had only about fifty thousand applications from the millions of members. In order that the Tribunal should not draw the false conclusion that the overwhelming majority of those affected admit their guilt by remaining silent, I must emphasize that such guilt will be most passionately denied by all those affected.

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