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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-First Day: Friday, 1st March, 1946
(Part 4 of 9)

[DR. BABEL continues]

[Page 87]

After a closed session of the Tribunal on 11th December, 1945, in which counsel for the indicted organizations also took part, the Tribunal by a ruling of 17th December, 1945 - of which I received a German translation only after a few days - 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 stated unambiguously 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 defence, 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.

DR. BABEL: Mr. President, before I started reading this motion I pointed out that as early as the 15th of 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.

[Page 88]

THE PRESIDENT: I do not 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.

DR. BABEL: Mr. President, under these circumstances I shall not read those further arguments, which may be known to the Tribunal 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 Tribunal will consider that. But what you have been saying to us does not appear to me to have any relevance to that point.

DR. 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 just read 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. For the rest, I agree with the arguments brought forward by my colleagues in this regard. In this connection I should like to point out that on 19th January, 1946, I put forward a motion to be relieved of the defence 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 28th 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 government, 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 have 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 state that the suggestions made by the prosecution, and several of the defence counsel, as to the presentation of evidence, seem untenable to me. They would entail a considerable limitation of the defence. To carry them out seems to be impossible also for reasons of time.

This concludes my argument.

THE PRESIDENT: The Tribunal will now adjourn.

(A recess was taken until 1400 hours.)

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 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: (counsel for the General Staff and the OKW): 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, the concept of the criminal organization in particular must be clarified. Consequently, it is not the task of counsel for the organization to plead in detail; that should be reserved for the final address by defence counsel; but rather the subject of discussion is definitely limited, as far as the

[Page 89]

defence 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 such evidence.

According to the sequence provided by the Indictment, our colleague, Dr. Kubuschok, spoke first, as defence counsel for the Reich Government. In his address he dealt with the general issues in compliance with Point No. 1 of the decision of the Tribunal of 14th January, 1946. In order to avoid unnecessary repetition, I should like to make the legal arguments of my colleague Kubuschok, in 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 those 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 impartial judgement.

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 pointed out 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, since by the verdict of the Tribunal it would irrefutably be established that they were 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 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 20th 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 have the 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 charge of guilt only by declaring that they were not members of the group or organization.

If Mr. 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.

[Page 90]

Mr. 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 grounds 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; as far as innocent members are concerned, this question can be definitely answered only in the negative.

Mr. Justice Jackson is further of the opinion that there probably are no innocent members of the organizations concerned, because it is simply incomprehensible to a sound intelligence 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 Mr. 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 and 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 organization is not only unnecessary, but can be dispensed with altogether.

Mr. Justice Jackson declared that, of course, no one intended to indict 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 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 dishonoured by a declaration of the criminality of the group or organization, but, if indicted, would also be punishable

[Page 91]

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 a verdict on all those members without knowing whether or not numerous innocent members would be affected thereby.

Mr. 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 which is 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 judgement has yet been passed by which a group or organization as such was subjected to penalty or was declared criminal. It is quite possible, however, that in the trials against members of criminal organizations, the criminal character of the organization was stated in the argument. This statement, however, had effect only on the convicted members and not on other members who were neither indicted nor convicted.

The quoted provisions of Articles 128 and 129 of the German Penal Code are provisions which corroborate exactly the view of the defence, because they threaten with penalties only the participants in an illegal association, 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 objects. 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 French Penal Code.

The first provision forbids the forming of associations with a punishable object the second subjects only the participants to penalty. Likewise, the French law concerning Armed Groups and Private Militia of 10th January, 1936, provides only for the punishment of the participants. The same is true of the other law quoted, that of 26th August, 1944, which provides only for individual responsibility. None of the above-mentioned laws allows the punishment of organizations. Consequently, they can support the legal view of the defence only.

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