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 3 of 3)

[DR. KUBUSCHOK continues]

[Page 123]

At any rate, however, in considering the element of negligence one should also not overlook the fact that the obligation to exercise attention differs in the case of ex post facto laws from what it would be in the case of existing laws.

In this connection I should like to refer to the fact that the question of whether the statutes of the Party organizations were illegal or not had often been examined already, even earlier, at the time of the Weimar Republic. Political considerations definitely favoured such a declaration. Apparently, legal scruples at that time did not deem the carrying out of such a procedure expedient. What measures should we then apply to the individual member's ability to judge such matters, if the legal problem is so difficult and lends itself so very much to discussion?

The prosecution has restricted the motion so as to exclude the auxiliary workers in the case of the Gestapo. The reason for this can only have been that in the case of these members, knowledge can not be assumed to be self-evident. I ask that the conclusions drawn in this individual case be applied to the members of other organizations. Should not the individual member of an organization comprising millions, who had far less contact with the executive body than did an auxiliary worker of the Gestapo, should not this member be judged much more favourably, as far as knowledge is concerned, than this group which has been excepted ?

Are we not in particular obliged to use the best methods possible, to inform ourselves as to the knowledge, or lack of knowledge, of the individual member? Sir David, in discussing the problem of negligence, suddenly spoke of an ostrich policy. But here we have to consider that the person who sticks his head into the sand in order not to see, has actually seen something and therefore does not want to see any more. It is quite different in the case of this member, who, from the sources at his disposal, can gain no knowledge of individual actions, who, in particular, has no knowledge of whether possibly only ...

THE PRESIDENT: Forgive my interrupting you, but the Tribunal has already heard and listened with attention to your interesting argument, and the argument that they now are prepared to listen to is only a very short argument in rebuttal. As I have already pointed out, it seems to me that the greater part of what you are now saying is what you have already said. We can not go on hearing these arguments at great length.

DR. KUBUSCHOK: Since I have arrived at the end of my remarks, I should like in conclusion just to introduce one point of view which concerns the defence of the Reich Cabinet. The number of members of the Reich Cabinet is very limited. One half is in the defendants' dock. Is it really necessary to consider the other half cumulatively as an organisation, since the small number of those concerned makes possible an individual trial, with all the legal guarantees given therein? To this extent I should like to refer to the remarks made by my colleague, Dr. Laternser, who mentioned the provision of the Charter that the Tribunal is not compelled to reach a decision but that for reasons of expediency it can refrain from doing so.

[Page 124]

THE PRESIDENT: Mr. Biddle wants to ask you some questions.

MR. BIDDLE: I have just one question. Will you listen to this very carefully?

If the Tribunal find that an organization was being used for a criminal purpose, and certainly with respect to some organizations, there is ample evidence that might justify such a finding, why, then, would the Tribunal not be justified in holding that organization as a criminal organization in so far as it was composed of persons who had knowledge that it was being so used and voluntarily remained members of the organization? In other words, the definition would state that it consisted of members who had actual knowledge that the organization was engaged in the commission of crime.

DR. KUBUSCHOK: The organization cannot be separated from the total number of its members. The declaration of criminality, in connection with Article No. 10, is to affect each individual member. The task of the Tribunal would not be fulfilled if it limited that task and excluded from the organization unspecified individuals. In the task which I have mentioned we can not overlook the practical purpose, and that will not be guaranteed if such a limitation is made.

MR. BIDDLE: I will ask just one more question. I do not think you have answered my question. I will put it very simply again.

How would that definition be unfair to any individual?

DR KUBUSCHOK: If only a limited circle of persons in connection with the organization is branded as criminal, this necessarily results in an injustice to the other members of the organization. The declaration, naturally, affects the name of the entire organization, and, therefore, the declaration of criminality affects each individual member, even if one tries to limit the definition.

MR. BIDDLE: Thank you.

THE PRESIDENT: I think in view of the time we had better adjourn for ten minutes.

(A recess was taken.)

DR. LATERNSER (counsel for the General Staff and the OKW): Mr. President, it was not my intention to make a statement today about the concept of the criminal organizations, because I believe that my statements of yesterday on this point were comprehensive. I should merely like to state briefly my attitude to the second question put by Mr. Biddle to my colleague Kubuschok.

The second question, if I understood it correctly, was as follows: Why is it unfair to the individuals who were members of an organization, or why can it be unfair to them if this organization is declared criminal? This declaration of the criminality of an organization is certainly unfair to all those members who had no knowledge of any supposedly criminal purposes and aims. For in this question one has to . . .

MR. BIDDLE: You misunderstood the question; the question was a very simple one. I do not want to go into it unless you want to. I will repeat it again. I said this: If an organization was being used for criminal purposes -and I added that there was very great evidence that such was the case in certain instances - why would it not be proper to hold it a criminal organization in so far as it was composed of persons who had knowledge that it was being so used and voluntarily remained members? Of course, that would exclude from the organization everybody who did not have knowledge that it was engaged in criminal purposes.

DR. LATERNSER: Then I did not understand the question quite correctly and further statements in regard to these questions, which have now been settled, are unnecessary.

DR. LOEFFLER (counsel for the SA): I should like first of all to correct a misunderstanding. Sir David stated yesterday in his reply that I had admitted that the SA had participated in the acts of 10th and 11th of November, 1938. I

[Page 125]

emphasize expressly that I stated that only two per cent of the SA at the most were involved in individual actions, and that obviously applies to this event as well. This example enables me to underline what my colleague Servatius has previously stated, about taking into consideration the so-called mistake of an organization in a case where an organization deviates from its path and commits an error - which should be avoided. The ninety-eight per cent who did not participate as well as the two per cent who did participate, with a few exceptions, all regarded this action with aversion and disgust and were not inwardly in agreement with it.

It is, therefore, an error on the part of the Indictment if on the basis of this single event, on the basis of this exceptional case, general conclusions are drawn as to the general character of the organization. For it is rightfully protested that the very rejection of this action is a proof that this is an exception to the general tendency of the organization.If then, it is asserted, as a second point, that the SA was also concerned with concentration camps, that is also a further typical proof of the false conclusion to which one can come in the case of judgement against the organization. Of four millions there were one thousand men at the most; that is only a half per cent. The remaining three million, nine hundred and ninety-nine thousand had no knowledge of this and this can be proved. No one will wish to claim that the fact that a half per cent were involved in something - about which the others knew nothing at all - allows a conclusion to be drawn as to the question of criminal character. But this small percentage as such is not an answer to the question, which is being raised at this point. Rather we are, as before, of the opinion that the explanation which was made by Attorney Kubuschok absolutely covers the criminal character as formulated by the defence - if the basic conditions are met, as set down by Attorney Kubuschok in agreement with all defence counsel for the organizations. On the basis of this formulation that question which Justice Biddle previously put to counsel for the various organizations can readily be answered. I should like to emphasize that yesterday Mr. Justice Jackson made the suggestion that instead of hearing countless witnesses, experts be heard on the subject of what wilful intention can be assumed in the case of the single organizations. I should like to oppose this emphatically. One can not hear any expert witness who can tell the court what, so to speak, that "common sense" was, or, on the basis of which the question is to be judged - what knowledge the single members had. The members, as far as intelligence is concerned, vary greatly. There are those of average intelligence and there are less intelligent members of the organizations. If a judgement is to be passed here, which also affects less intelligent members of the organizations and condemns them, then, it is a basic principle of law that this should not be done on the basis of what the intelligent members of the organizations might and could have known; that would be an injustice to the average persons and the less intelligent. Not even the average persons can be taken as a basis, since this would be an injustice to the still less intelligent, who would be included in and affected by this judgement.

In conclusion I should like to point out that yesterday's debate on the question of the effect of the judgement which this Court is to pass confirmed in full measure the fears of the defence counsel. Mr. Justice Jackson declared that this judgement would have the character of a declaration. This is not compatible with the statement which Lieutenant- General Clay, the deputy Military Governor of the American occupied Zone, made yesterday in an interview for the "Neue Zeitung," the American paper for the German population. I should like to quote a sentence from the latest issue which refutes Mr. Justice Jackson's opinion. Lieutenant-General Clay declares in regard to the question of the fate of th03e interned in the United States zone of occupation:-

"The decision of the Nuremberg Tribunal will decide what will happen to them. Their number is at present 280,000 to 300,000. Should the

[Page 126]

International Tribunal at Nuremberg, however, consider all the members of the indicted National Socialist organizations war criminals, then the number will be increased to 500,000 or 600,000."
The declaration made by Mr. Justice Jackson yesterday that no mass retribution is intended could be made only in reference to the present standpoint of his government. But there is no guarantee that other governments will not take another stand, or that his government, which is not bound to Justice Jackson's opinion, will not alter its stand.

I should like to conclude with this remark: Justice Jackson mentioned the shock which the combination of the Charter and decision desired by the prosecution in connection with Article No. 10 has been to the defence. I believe that the effect of this shock is not confined to the defence alone, but affects all people who are interested in justice for if the combination of these various laws gives the National Courts the opportunity to call millions of members of organizations to account among whom, as justice Jackson also could not deny yesterday, there are innocent people - and if punishments for mere membership, ranging from a fine to the death sentence, are provided, then it is the duty of the defence to point out that the procedure here obviously threatens to deviate from the basis of law and will necessarily lead to arbitrary action.

If Mr. Justice Jackson then in answer to this refers to the effect of shock in connection with the death of many Jews, one can say that those things happened outside the law and in the name of force. This Charter and this Tribunal, however, want to do away with force and put justice in its place. But justice must be clear and it must be sure.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, the Tribunal said earlier that certain questions had been asked of me. I am perfectly prepared to answer the three questions if the Tribunal desires their time to be occupied by my so doing.

THE PRESIDENT: I do not think the Tribunal wishes to hear any further arguments unless you particularly want to answer anything.

SIR DAVID MAXWELL FYFF: I did not intend to argue at all. It was only that Dr. Dix put two questions to me on which he asked my view, and Dr. Servatius one, but I am in the hands of the Tribunal. I do not want it to be thought that the prosecution is not prepared to answer the questions.

THE PRESIDENT: If you can answer them shortly, we should be quite glad to hear them.

SIR DAVID MAXWELL FYFE: The first question that Dr. Dix asked me was to clarify what I had said about the "Fuehrerprinzip" in relation to the Reichsregierung. I can answer that in two sentences. I said that, in addition to the ordinary support which members of the Reichsregierung in 1933 gave to Hitler under the Fuehrerprinzip, they entrusted their consciences and wills to him and adopted completely his points of view.

In order that Dr. Dix may be under no misapprehension with regard to his client, the case for the prosecution may be put in the words of Dr. Goebbels, one of the conspirators, on 21st of November, 1934, in conversation with Dr. Schacht:

"I assured myself that he absolutely represents our point of view. He is one of the few who accepts the Fuehrer's position entirely."
The second point was on the question of the Party programme in relation to the Treaty of Versailles and the Anschluss. Dr. Dix asked me to deal with those who desired to effect the aims of the Party programme in a peaceful way. The prosecution says that that does not arise: that the Party programme must be considered in the background of Hitler's and other publications as to the use of

[Page 127]

force and also as to the existing state of things in the relationship of Germany with the Western powers and also of treaty obligation to Austria and Czechoslovakia.

The third question that was put to me was by Dr. Servatius about the Leadership Corps. You will remember, my Lord, that in the statement of the Tribunal the prosecution was asked, if it were making any limitation, to make it now. That is contained in the statement of the Tribunal. The limitation which we have made, that is, only including the staff in the case of the Reichsleitung, Gauleitung, and Kreisleitung, and excluding the staff in the case of the Ortsgruppenleiter, Zellenleiter, and Blockleiter, is the view to which the prosecution adheres and which has been agreed by the different delegations. I wanted Dr. Servatius to know that that was the position. I do not intend to repeat the reasons for it which were given by my friend, Mr. Justice Jackson.

THE PRESIDENT: There is only one thing I should like to say. I think it might be useful to the Tribunal if you have them, to let us have copies of the British statutes to which Mr. Justice Jackson referred and also of certain judgements of the German courts - if you have copies available.

SIR DAVID MAXWELL FYFE: They will be found for the Tribunal and the Tribunal will receive them within the shortest possible time.

THE PRESIDENT: Mr. Dodd, I understand that you have an affidavit which you wish to put in with reference to the High Command?

MR. DODD: Yes, we have one. We located this affidavit on Thursday; the Tribunal had inquired about it on the afternoon of the day before, on Wednesday, I believe it was. We have prepared for the Tribunal a list of the officers comprising the German General Staff and High Command as defined by the Indictment in Appendix "B." The list was compiled from official sources in the Admiralty Office of Great Britain, the War Office of Great Britain, and the Air Ministry of Great Britain, and supplementary information was obtained from senior German officers, now prisoners of war in England and in Germany. The list is attached to this affidavit as we intended to submit it this morning to the Tribunal, and the affidavit describes the source from which this information was obtained and it points out that the list does not purport to be exhaustive or necessarily correct in every detail. It is, however, substantially a complete list of the members of the General Staff and of the High Command and of the High Command Group, and on the basis of this compilation there appear to have been a total of a hundred and fifty members, of whom a hundred and fourteen are thought to be living at the present time. I wish to offer the list formally, together with this affidavit, as Exhibit USA 778. I ask that it be accepted without reading. However, of course, if the Tribunal would like it read over the public address system, I should be glad to do so.

THE PRESIDENT: No, I do not think you need read it over; copies have been given to the defence?

MR. DODD: Yes, they have, your Honour. They have been given to the defence.

THE PRESIDENT: Very well. Thank you.

MR. DODD: Colonel Smirnov, if your Honour pleases, is prepared to read the document with reference to Stalag Luft 3. If the Tribunal would like, we will have him do so.

THE PRESIDENT: I think that might perhaps be done on Monday morning.

MR. DODD: Very well.

THE PRESIDENT: The Tribunal will now adjourn.

(The Tribunal adjourned until 4th March, 1946, at 1000 hours.)

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