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-Second Day: Saturday, 2nd March, 1946
(Part 2 of 3)

[Page 117]

DR. DIX (counsel for the defendant Schacht) : I have, as counsel for the defendant Schacht, an indirect interest in the question of the criminality of the group Reich Cabinet (Reichsregierung) because Schacht was a member of the Reich Cabinet. I want to point out, however, at the very beginning, that I do not want to make detailed statements now either of a legal nature or in regard to the facts of the case. I shall do that rather at the time of my concluding speech.

I ask the support of the Tribunal, is a clarification and amplification of those answers, which Mr. Justice Jackson and Sir David Maxwell Fyfe gave yesterday to your questions, Mr. Biddle.

[Page 118]

I should like to point out that it is, of course, clear to me that I have no right to ask any questions of the members of the prosecution. Formally speaking, I could at the most ask the Tribunal to supplement the questions which were put yesterday by the Tribunal. I believe, however, that this formal objection has no practical significance, because I am convinced that Sir David, who will see the pertinence of my request to have his answer amplified, will be prepared to amplify the answer given to the question by Mr. Biddle without discussing the theoretical question, whether he is under any obligation to do so.

Sir David Maxwell Fyfe was asked yesterday whether he considers the Reichsregierung, that is to say, the Reich Cabinet as it was composed on 30th of January, 1933, in view of the then relatively small number of National Socialist cabinet members, criminal even at that time and if so, whether he is of the opinion that this hypothetic criminal character was at that time discernible to other people.

Sir David answered this question of Mr. Biddle's in the affirmative and based his answer (1) on the contents of the Party programme and (2) on the fact that already at that time the Leadership Principle had been set forth in the programme.

I should like to ask if Sir David would supplement his answers along the following lines. Does Sir David really mean to say that the Leadership Principle as such, that is to say, purely as an abstract theory, is not only to be rejected politically or for other reasons, but is also to be considered criminal? I want to make it understood that I am speaking about the abstract principle, without considering any factual developments in the ensuing period of time.

Concerning his second answer, that the Party programme justifies him in declaring that even at that time the Reich Cabinet is to be considered criminal and was recognizable as such. This answer - not directly in response to Mr. Biddle's first question put in the course of further questions addressed to him by the Tribunal - he added to and substantiated by declaring that the aim expressed in the Party programme of eliminating the Treaty of Versailles and the announcement therein of the desire for the annexation of Austria were the criminal points in this programme.

May I ask Sir David to state, first, whether these two points of the Party programme, that is to say, the abrogation of the Treaty of Versailles and the "Anschluss," with the exception of the Leadership Principle, were the only points of the Party programme which caused him to consider that programme criminal, that is, to consider a government criminal which knew that programme? Secondly, I should like to ask whether he really wants to put forward the opinion that an attempt to attain a revision or an abrogation in a peaceful fashion, that is, by way of negotiations, of a treaty found to be oppressive - very oppressive, by a nation, can be considered criminal.

Furthermore, I should like to ask him, to state whether, considering the great democratic principle of the right of self-determination of nations and considering the history of the annexation movement in Austria itself-and I remind him of the plebiscite of 1919 when this Anschluss was demanded by, one may safely say, a hundred per cent. of the Austrian population - he, as a politician, would consider a political party or a political programme criminal which aimed at reaching this goal in a peaceful fashion. And here I should like to stress again in order not to be misunderstood, that the later development and everything which actually happened and anything which might not have happened in accordance with the Party programme is to be left out of consideration and only the Party programme as such taken into consideration. Upon that, of course, the sense of his answer depended when he said, "Yes, the Party programme is the basis of the criminal character."

Now, finally, to come to the end, it would be consistent with the logical course of my explanations, to wait until Sir David has decided on this question for an answer from Sir David and also from Mr. Justice Jackson, who is not here today.

[Page 119]

THE PRESIDENT (interposing): Dr. Dix, the Tribunal will, of course, consider anything that you have said in so far as it refers to matters of principle, but they do not think that this is the proper time for counsel for the defence to pose questions to counsel for the prosecution. The matter has already been fully dealt with, and the Tribunal does not propose to ask any further questions of the prosecution unless the prosecution wish to say anything in answer to what you have to say.

DR. DIX: Your Lordship, that was what I took the liberty of saying at the beginning. I realize that it is Sir David's free will and decision as to whether he cares to comply with my request to add to his answer to the questions posed by Mr. Justice Jackson. That I have to leave to him.

I have only a short question, which is intended to prevent our misunderstanding each other. It is always well not to be misunderstood.

I remember - but I may be mistaken, and that is why I wish to ask Sir David what Mr. Justice Jackson declared as his opinion - that he did not consider the Party programme, as such, criminal. As I have said, this is what I remember. I did not take any notes on it, because it did not strike me particularly at that time, since I considered it self- evident. Therefore I may be mistaken. But if my memory is correct, I should like to ask Sir David to state whether there is any uniform attitude on the part of the prosecution toward this point.

THE PRESIDENT: Dr. Dix, the Tribunal asked the prosecution to present their arguments in principle on the question of these organizations, and they wished also to hear counsel for the organizations in order that these matters should be cleared up, with a view to any possible evidence which might have to be given. They have heard counsel for all four prosecutors. They have asked them questions which they thought right to ask them in order to clear up any points. They have heard counsel for all the organizations and they have heard counsel for the prosecution in reply. They do not propose to ask any further questions of the prosecution at this stage. Of course counsel for the prosecution and counsel for the defence will be fully heard at a later stage.

DR. DIX: I have come to the end of my statement. I leave it to the Court and Sir David as to whether he wants to answer these questions, now.

DR. SEIDL (counsel for defendant Frank): Mr. President, I should like to give a short explanation to the question as to which of the indicted organizations the defendant Frank belonged. Is that possible at this moment?

THE PRESIDENT: Dr. Seidl, the Tribunal does not think this is an appropriate time for any of the counsel for individual defendants to go into matters connected with the charges against the organizations. They will, of course, be heard in the course of their own defence, but this is not the appropriate time. This is only a preliminary discussion for the purpose of clarifying the issues which relate to the organizations.

DR. SEIDL: Yes, but I should like to use this opportunity to clarify a mistake which occurred the day before yesterday. The day before yesterday I protested against the statement that the defendant Frank was a member of the SS and this seems to have been translated incorrectly.

THE PRESIDENT: But Dr. Seidl, will it appear in the shorthand notes? You have not seen the shorthand notes yet?

DR. SEIDL: I have not seen the transcript yet, but I believe that by error, "SS" was translated as "SA." The defendant Frank has never denied that he was an SA Obergruppenfuehrer. What I wanted to point out is only that the statement in the Indictment that he was an SS General is not correct and also that the statement in Appendix B about the nature of the criminal element is not pertinent, because it is said there that he was an SS General. But I attach importance to the fact, that the defendant Frank has never denied, that he was an SA Obergruppenfuehrer.

[Page 120]

THE PRESIDENT: Very well, but you will have an opportunity to develop the whole case of Frank when your turn comes.

DR. SEIDL: Yes, but the question is merely this, as to whether the defendant Frank was a member of the SS or not. As long as the prosecution does not present any definite proof of the membership of the defendant Frank in the SS, I have to contradict this statement. I do not believe that it is the task of the defence to prove that the defendant Frank was not a member of the SS. I am convinced that, on the other hand, this is one of the tasks of the prosecution.

THE PRESIDENT: Very well; I have heard what you said.

DR. SERVATIUS : Dr. Servatius, for the Leadership Corps ...

THE PRESIDENT: Dr. Servatius, the Tribunal is prepared to hear counsel for the organizations very shortly in rebuttal, but only very shortly, as otherwise we may go on interminably.

DR. SERVATIUS: I do not want to make a speech, but merely to speak for about five minutes, in order to define my attitude towards a few matters of evidence. First, I have two questions to ask concerning the limitation of the proceedings to certain groups of members. I should be grateful if the prosecution could give a statement as to whether the exception of certain parts of the organizations, as has taken place, is a final one, or whether other procedures and steps are being held in reserve. This was stated originally in reference to the Leadership Corps. Concerning the limitation of the proceedings to certain groups of members in reference to the Leadership Corps, I do not wish to make any further motion, in as far as that limitation has already been effected. I should be glad, however, if a decision could still be reached concerning the women. The female technical aides who were employed in the offices can not, in my opinion, be included in the staffs. At any rate, they do not belong to the Leadership Corps, although they worked with the staffs. These women themselves are of this opinion, and also the officers in the camps shared this opinion. Accordingly, not a single application for leave to be heard has been made by any women in the British zone.

I presume it is known that women as a matter of principle, were kept away from politics in the National Socialist State, and, therefore, they can hardly be connected with the crimes stated in Article 6.

Now, I should like to speak about two points concerning questions of evidence. As every profession creates the tools which it needs, so the jurist creates concepts to solve his problems. These concepts are not created for their own sake; thus the concept of the criminal organization will serve to call guilty persons to account who would otherwise possibly evade this responsibility of theirs. In establishing the Charter, the procedure was this, that one did away with the traditional structure of the State in order to reach the individual. But in order to be able to seize these individuals, one brought them together again through the concept of the guilt of conspiracy. In this way, however, only a relatively small circle can be reached, since its members would have to be bound to each other by means of an agreement. In order to enlarge this circle by means of legal technique, the concept of a criminal group or organization was created. This organization is involved in the agreement of conspiracy only at the very top, while the members automatically, without their own knowledge, are included in the conspiracy. Such a definition of the concept of a criminal organization is justifiable only in so far as it is useful in getting hold of the really guilty persons and only the guilty ones.

In order to define the limits of this concept, I should like to discuss two further points concerning the determination of guilt and therefore necessarily relevant to the question of admissibility of evidence. First, there is the question of the members' lack of knowledge of this criminality: the lack of knowledge resulting from secrecy, and then the attitude of the members after they had recognized the offences being committed. In my opinion, the examination of guilt cannot be

[Page 121]

dismissed by pointing to the alleged knowledge of foreign countries about the real conditions. In foreign countries a propaganda was effective which exaggeratedly brought these things to light. In Germany, all these facts remained secret, since because of their very nature, they had to be secret (for instance, what was going on in the extermination camps) and because they had to be kept secret for political reasons. Moreover, the things which have become known here were so unimaginable that even in Germany one could not have believed them, had they become known during the war. It must be relevant to determine not whether a single individual member had no knowledge, but that ninety-nine per cent. of the individual members acted in good faith. In this case, the organization is not criminal, but there could have been a criminal in it. If this is determined, then the legal construction of the criminal organization is superfluous and thereby false. The legal concepts existing until now will then be sufficient for bringing the guilty to trial.

The next point: The criminal nature or the criminal character of which the Charter speaks, shows that that must be something which concerns the entire organization and that it must be a continuous state of affairs. Individual acts which were rejected as wrong by the organization, or the overwhelming majority of its members, cannot establish the criminal character of the organization. The attitude of all the members to the incriminating acts is therefore of decisive importance and thus of evidentiary relevancy.

We do not need the concept of the criminal organization in order to punish individual criminals whose acts were rejected by the majority. Among such individual cases, in organizations which comprise millions of members, there may be cases in which smaller or even larger groups, or certain local districts took part.

I believe that it is really a major task of the Tribunal to define the nature of this guilt as applied to the entire organization. I am of the opinion that the points I have mentioned, the secrecy of these facts and the attitude of the members after gaining knowledge, must form the basis for the collecting of evidence.

MR. BIDDLE: I want to ask some questions.

Dr. Servatius, I would like to ask you - and I will ask other counsel for the organizations - whether in general you accept the definition of criminal organizations suggested by Mr. Justice Jackson, which is found on Pages 19, and 20 of his statement? You will remember that he made five general tests. Now, in order to determine what evidence should be taken, we must determine what is relevant. Now, the test of what is relevant depends on a general definition of what is common to all organizations, for that purpose. Now, do you, or could you now, say whether in a general way you accept those tests for the purpose of taking evidence?

DR SERVATIUS: I have not yet thought about that and have not had a chance to discuss it with my colleagues. I should be grateful if we could be given such an opportunity. Perhaps this afternoon a representative of the defence counsel for the organizations could report to the Court about this.

MR. BIDDLE: Let me ask you another question. What, in your mind, are the tests that should be applied for the purpose of taking evidence?

DR. SERVATIUS: I did not quite understand the question.

MR. BIDDLE: I said that Mr. justice Jackson had suggested a definition from which the relevancy of certain evidence could be established. Now, have you any suggestion to offer for that same purpose?

DR. SERVATIUS: I should not like to commit myself without having spoken to my colleagues. It is a question of great importance which I should not like to deal with by myself.

[Page 122]

MR. BIDDLE: Yes, but it is the basis of this entire argument, the very purpose of the argument was to develop that.

DR. KUBUSCHOK (counsel for the Reich Cabinet): In the course of yesterday's debate, the problem was discussed as to whether the task set before the Tribunal by the Charter can be considered a legislative act. The question was brought up as to whether, if we answer the preliminary question in the affirmative, the Tribunal has the possibility of giving any binding instructions to the National Court, which has to try individuals according to Article No. 10. That concerns, above all, the extent of the examination of the guilt of the individual member and the limitation of the scope of punishment for minor cases. I believe that, if we follow up this deliberation we shall be led from a play upon words into a labyrinth when it comes to the practical application. Actually, the task given the Tribunal is not a legislative act. It is not a procedural innovation if the National Court in subsequent proceedings is bound by the previous decision of this Tribunal. Such cases are quite plausible and legally admissible. If elsewhere in criminal procedure a criminal court is bound by a previous decision, say of an administrative court, we consider these cases quite in order and unobjectionable. Likewise, a criminal court could, for instance, be bound in judging a case of embezzlement to wait for the previous decision of the civil court, as to whether the object embezzled was the property of somebody else.

Here too, nobody would think that the civil judge was undertaking an act of legislation. That another court's decision is binding on the criminal court and is the premise for its sentence, does not in any way mean that the author of the criminal code has not completed his legislative task and that this has now to be done by the court which takes the preceding decision. In my opinion, we, therefore, do not have to consider this point any further, for Article 9, Paragraph 1, of the Charter demands of the Tribunal a clear and unequivocal decision of the question whether the organization is criminal or not.

More cannot be read either into the Charter or into Article No. 10. Yesterday, Sir David defined his attitude to the five points which were submitted by me for consideration as to relevancy of evidence. In regard to the two last points, he raised the objection, that they were to be dealt with in the subsequent trials envisaged by Article No. 10. It was a question of the grounds for exonerating persons - for instance, coercion, deception, etc. I want to avoid repetition and point out only the following: It is quite correct that the question of coercion and deception and other reasons for exoneration of persons be discussed in subsequent trials. In connection with this, Sir David also called the attention of the Tribunal to a really noteworthy problem, that is, the problem of a deception by the State, that is, a problem of mass suggestion. This is really a very important problem. It affects many members, as far as their joining is concerned. But it leads to the broadest deduction as to the guilt of the entire membership and the character of the total organization.

We have, therefore, to pay particular attention as to how the problem of deception on the part of the State affected the member and thereby was characteristic of the organization. All grounds for exoneration of persons are, therefore, also to be examined by the Tribunal in judging the question of the character of the organization. Furthermore, evidence must be taken on the broadest basis.

If the Tribunal were to make any limitation now, there would be the possibility that later, at the end of the trial, in contrast to its present opinion, it might consider as relevant material now excluded.

In yesterday's debate, the importance of the question was discussed in regard to the proposed declaration of criminality, as to what should be considered as constituting knowledge on the part of the single member. Sir David here applied the standard of a person of average intelligence, and wants to consider as guilty anybody who was below that standard.

[Page 123]

I have already recently explained that in regard to laws threatening such a severe punishment, as in this case, all systems of penal law require that wilful intention on the part of the perpetrator be proved. Offences of negligence are punishable only in exceptional cases, and then only with minor penalties. At any rate, in a case of an offence by negligence, it must be clear to the offender that he is under a relevant legal obligation to obey Article No. 10, and now, in connection with it, the proposed verdict of this Court represents an ex post facto law.

In the case of the main defendants, the prosecution have justified the deviation from the generally recognized principle Nulla poena sine lege, on the ground that they themselves did not act in accordance with this principle and cannot, therefore, base their defence on it now. This, however, does not in any way apply to the organizations, quite apart from the question whether this argument can be accepted at all.

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