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 9 of 9)

[Page 109]

SIR DAVID MAXWELL FYFE: I am trying to relate it to the practical position. That is where I find it very difficult.

Now, to take your example, it is difficult to imagine. Let us take four divisions that were very well known: the Totenkopf, the Polizei, Das Reich, or the 12th Panzer Division. I should have thought that, as a matter of discretion, if it were sought to show that these divisions, about which there is so much evidence as to their participation in crime, did not know of the crimes, the Tribunal would be right in rejecting that argument.

MR. BIDDLE: The question would come up more as to whether the acts of the members of certain divisions were known generally throughout the whole Waffen SS, would it not?

SIR DAVID MAXWELL FYFE: With the greatest respect, I find it very difficult to see how the knowledge or absence of knowledge of a particular division in the Waffen SS could affect the question of criminality of the SS as a whole.

MR. BIDDLE: Again, I am not asking you as to knowledge in a particular division; I am asking you as to general knowledge, throughout the entire Waffen SS, of the acts of a particular unit.

SIR DAVID MAXWELL FYFE: If some one is prepared to say, "I knew every division of the Waffen SS, and in my opinion no one in the Waffen SS had any knowledge or had any opportunity of knowing of the crimes," then the evidence would be admissible. Its weight would be so negligible that I should submit it would not detain the Tribunal long.

But I concede that if some one is prepared, laying the proper ground for his evidence, to say, "I can speak; I have the grounds for and the opportunity of speaking on the general position," then I do not see how the Tribunal could exclude it.

MR. BIDDLE: The matter is very practical because we have to advise counsel for the defendants what material they can introduce, and to do that very soon.


MR. BIDDLE: Now let me ask you a few other questions.

On what basis, Sir David, do you contend that the Reich Cabinet was a criminal organization as of 30th January, 1933, when, if I remember correctly, there were only three members of the Nazi Party who were in the Cabinet: Goering, Hitler, and Frick. Do you think that if three out of a very much larger number, some twenty odd, could be said to be part of a criminal organization, that makes the entire Cabinet criminal?

SIR DAVID MAXWELL FYFE: Certainly, on the facts. It must be remembered that Hitler had refused to take office as Vice- Chancellor during the months before that, before the date that you put to me. He had refused on the ground that, as Vice-Chancellor, he would not be in a position to carry out his Party programme. On that basis the defendant von Papen and Hitler negotiated, and Hitler came into power on 30th January.

It is the case for the prosecution that those who formed part of that Cabinet knew that they were forming part of a cabinet in which Hitler was going to work out his programme, as has been declared on so many occasions. That is the first point.

Secondly, it is the case for the prosecution that the defendant von Papen did join in introducing the Nazi conspirators into the Government with that knowledge and with the purpose of letting them have their way in Germany.

The same must apply, although it has not been investigated to the same extent, because they are not defendants, to the industrialists and the Party, who were acting with them in the Cabinet. They must be taken to have known, just as Gustav Krupp knew and supported, just as Kurt von Schroeder knew and supported the aims of the Nazis whom they introduced and co-operated with in the government.

[Page 110]

Thirdly, the personalities of the Nazis in the government - Hitler himself, and the defendants Goering, Frick, and Dr. Goebbels, who I think became Propaganda Minister either at the same time or very shortly afterwards - show that these people, they have shown it by their acts, were not persons to take second place. They introduced at once the Fuehrerprinzip into operation in the States, and these other people in the Cabinet at that time accepted the Fuehrerprinzip and united in placing Hitler and the defendant Goering, and the other conspirators, in the position of power and authority which enabled them to carry out their monstrous crimes that are charged against them.

I will give you one other reference.

It was within a few months of that period that the defendant Schacht became Plenipotentiary for War Economy and began the preparations for the economic side of the creation of Germany's war potential.

For all these reasons I submit that the actions of Reich Cabinet at that date were deliberate. The same applies to the defendant von Neurath; it is the whole case of the prosecution, as to the case against von Neurath, that he sold his respectability and reputation to the Nazis in order to help them buy with that reputation and respectability a position of power in Germany, with the conservative circles in Germany and with the diplomatic circles in Europe with whom he came in touch - for all these reasons, your Honour, I submit that the Reichsregierung at that time was thoroughly infected with the criminality which we suggest in this case.

MR. BIDDLE: In relation to the Political Leadership, let me ask you this, Sir David:-

In your opinion, would it be necessary to establish the responsibility of political leaders of lower grades to show that, as a group, they were informed of plans to wage aggressive war or to commit War Crimes or Crimes Against Humanity? In other words, I take it there is some obligation to show that information. Does that rest simply on the fact that these crimes were being perpetrated, or is there any evidence of that information?

SIR DAVID MAXWELL FYFE: There is evidence, and if I might just indicate the kind of evidence there is - on the first stage of the acquisition of totalitarian control in Germany, which is the first stage in the conspiracy, that is, apart from the Party Programme, there are the extracts from the "Hoheitstrager Magazine"; you remember, Hoheitstrager are all the political leaders. On the anti-Semitic part of that there are documents, which are Exhibits USA 240 and 332, which are shown in the record at Pages 37 and 52 (Part 3). On the question of war crimes against Allied airmen you will remember that a document was circulated to Reichsleiter, Gauleiter, and Kreisleiter, with instructions that Ortsgruppenleiter were to be informed verbally with regard to the lynching of Allied airmen. That is Document PS-057, shown in the transcript at Page 39 (Part 3). And that the hint was taken by at least one Gauleiter is shown by Document L-154, Exhibit USA 325, at Page 40 (Part 3).

Then, there is a Himmler order to senior SS officers, to be passed verbally to the Gauleiter, that the police are not to interfere in the clashes between Germans and aviators. That is Document R-110, Exhibit USA 333, shown at Page 38 (Part 3). Then there is a speech by Goebbels inciting the people to murder Allied airmen, which is shown at Page 39 (Part 3). Similarly, with regard to foreign labour, there is a telegram from Rosenberg to the Gauleiter asking them not to interfere with the confiscation of certain companies and banks.

There is Jodl's lecture to Reichsleiter and Gauleiter at a later stage. There is an undated letter from Bormann to all Reichsleiter and Gauleiter, informing them that the OKW had instructed guards to enforce obedience of prisoners of war refusing to obey orders, if necessary, with weapons.

[Page 111]

MR. BIDDLE: Sir David, if I may interrupt you for a moment. I was familiar with the evidence with respect to the Gauleiter. and Reichsleiter. My question, you will remember, was addressed to the lower levels, the Blockleiter.

SIR DAVID MAXWELL FYFE: Well, I think one can summarize it that even as far as lower levels are concerned you have the four points: You have Mein Kampf, the "Party Programme," "Der Hoheitstrager," and the fact that conferences were constantly held throughout the organization.

As I say, I have dealt with the evidence on the Jews, the lynching of Allied airmen, and I think I mentioned the letter from Bormann to the Reichsleiter, Gauleiter, and Kreisleiter about assisting in increasing the output of prisoners of war. And there is an instruction from Bormann down to the Kreisleiter about the burial of Russian prisoners of war. There is a decree for insuring the output of foreign workers that goes down towards the Gruppenleiter.

All these matters are in evidence, and we submit that there is particular evidence on practically every point. And on the general point, as I said, you have these publications, coupled with the evidence that conferences were held; apart from the general Fuehrerprinzip which would, and did, make the Zellenleiter and the Blockleiter the final weapon in order to ensure that the people acted in accordance with the leader's wishes.

MR. BIDDLE: Let me ask you just two questions, and then I will finish with regard to the SA. Would you say that a member of the SA who had joined, let us say, in 1921, and resigned the next year, was guilty of conspiring to wage aggressive war and was guilty of war crimes?

SIR DAVID MAXWELL FYFE: Yes, in this sense. If I may recall, I answered a question that you were good enough to put to me a day or two ago as to when the conspiracy started. A man who took an active and voluntary part as a member of the SA in 1921 certainly, in supporting the Nazi Party, was supporting the published programme of the Party which had the aims which you have just put to me.

That is certainly put clearly in Article 2 of the Party aim as the getting rid of the Dictate of Versailles, and the Anschluss, getting the Germans back to the Reich, which, of course, is only a polite way of saying destroying Austria and Czechoslovakia.

Therefore, that man had these aims in view.

With regard to war crimes, I respectfully repeat the answer that I gave to you the other day, that it was an essential tenet of the Nazi Party that they should disregard the life and safety of any other people who stood in the way of the securing of their ambitions. A person who deliberately joins an organization with that aim, and with that aim getting more and more clearly related to practical problems as week succeeded week, was taking part in a first essential step of involving mankind in the miseries that we have seen; because it is that tenet, applied to every facet of human life and human suffering, which has caused the crimes which this Tribunal is investigating.

MR. BIDDLE: Well, I can see how you might say that with respect to conspiracy in war crimes, but I want to be perfectly clear also that you say, on the substantive crime of committing war crimes, that a man joining the SA in 1921 and leaving in 1922 would have committed those war crimes in the beginning of 1939.

SIR DAVID MAXWELL FYFE: If you put to me the substantive war crimes, I respectfully remind you that under Article 6 the last words are:-

"Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in the execution of such a plan."
Under the Charter, in my respectful submission, that is enough to make them responsible for the crimes.

[Page 112]

MR. BIDDLE: Now only one other question. What do you contend was the function of the SA after the Roehm purge?

SIR DAVID MAXWELL FYFE: The function was still to support all Nazi manifestations in the life of Germany. You remember that Dr. Loeffler was careful to except - very frankly and fairly he excepted 10th November, 1938. The SA - and I gave another example how they were formed in the Government General - we have also given examples, which I think you will find in my Appendix, of the participation - limited participation, but still a participation - in the War Crimes and Crimes Against Humanity.

But the main point of the SA after that time was to show that here were three million people who had come into the organization, which had provided the force to bring the Nazis into power; and it had the forceful size needed to bring the Nazis into power in those days. They were then joined by two and a half million people, which brought their numbers up at that time to a very high figure. They went down again later on, but they were high in 1939, and they provided a great immoral force behind the Nazi Party. They provided strong support and were ready on all occasions; whenever a demonstration had to be staged, the SA were there to give their support. They were an essential instrument for maintaining the Nazi control over the German Reich.

MR. BIDDLE: I take it, then, that the function, in your opinion, did not change in substance after the purge? Would you say that?

SIR DAVID MAXWELL FYFE: The aim did not change. It did not need to do half as much, because, of course, by the end of 1933 all the other political parties were broken. Part of the SA's original task, as I think Dr. Loeffler put it, had been to safeguard the defendant Goering when he was making a speech - I should have put it that it was to prevent the other people from having a free run when they made speeches - and to deal with the clashes between the various groups. That was unnecessary, because all political opposition had been destroyed. Therefore they became rather - I forget the exact term - a sort of cheer-leaders or a collection of people who would always be ready to give vociferous support.

You must have heard, your Honour, of the meetings coming over the wireless with regulated cheers. It became more supporting, rather than dealing with opposition, but essentially the aim was the same, to keep the grip.

THE PRESIDENT: Dr. Dix, it is now nearly quarter past five. Do you think that this discussion can be closed this evening before six o'clock?

DR. DIX (counsel for defendant Schacht): Mr. President, I believe I can finish in five minutes.

THE PRESIDENT: All right. Do the other prosecutors wish to add anything?

GENERAL RUDENKO: I would like to make a few short remarks, Mr. President.

THE PRESIDENT: How long do you think you will be, General Rudenko ?

GENERAL RUDENKO: I think about ten minutes; no more.

THE PRESIDENT: Does the French prosecutor wish to add anything?

M. CHAMPETIER DE RIBES: I have nothing to add.

THE PRESIDENT: Dr. Dix, what I really want to know is whether there is any prospect of our finishing this discussion tonight. - General Rudenko wishes to speak for about ten minutes, and if the defendants' counsel - of course, you will understand that a discussion of this sort, an argument of this sort, cannot go on forever; and in the ordinary course one hears counsel on one side and counsel on the other side, and then a reply; one does not go on after that. Do you know how many of the defendants' counsel want to speak?

[Page 113]

DR. DIX: Mr. President, I know that.

THE PRESIDENT: I think probably the best thing would be if we were to adjourn now and to sit in open session tomorrow, and then we shall probably be able to conclude this argument in about an hour tomorrow. Do you agree with that, General Rudenko?


THE PRESIDENT: Do defendants' counsel think we shall be able to conclude it in about an hour tomorrow morning?

(Several counsel nodded affirmatively.)

THE PRESIDENT: Very well; we will adjourn now and sit at 10 o'clock tomorrow morning.

(The Tribunal adjourned until 2nd March, 1946 at 1000 hours.)

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