Trials of German Major War Criminals: Volume 22

The Trial of German Major War Criminals

Two Hundred and Thirteenth Day: Wednesday, 28th August, 1946
(Part 1 of 13)

[Page 188]

SIR DAVID MAXWELL FYFE: My Lord, might I mention the letter from General Warlimont which we discussed yesterday in connection with Dr. Laternser's application to call Colonel Buerker. My Lord, the prosecution had the opportunity of considering the letter and they are quite prepared to admit that the part of the letter which relates to Colonel Buerker, that is, section "A" of the letter, contains what Colonel Buerker would say if he were called. We are quite prepared to make the admission or stipulation which your Lordship suggested yesterday. My Lord, the other parts of the letter, "B" and "C," relate to a statement of General Warlimont himself and a statement of a Major Meier. Dr. Laternser has not made any application with regard to these parts and he is quite prepared that they should not be read. Dr. Laternser is prepared to agree with our suggestion that the first part relating to Colonel Buerker be treated as the evidence that Colonel Buerker would have given if he were called.

THE PRESIDENT: Then, perhaps, you will read section "A" of the letter?

DR. LATERNSER: I shall read from a letter from General Warlimont:

"Nuremberg, 23rd August, 1946. To Attorney Dr. H. Laternser."

I shall leave out part of it and I begin at:

"(A) About ten to fourteen days ago, early in the morning, there appeared before me, in the general camp at Dachau, Colonel of the General Staff of the German Army Buerker, who was also being detained there, and whom I had known for many years. He told me that he had learned from the radio news, the evening before, of the Russian accusation against the OKW of the alleged preparation for bacterial warfare. In this connection, he recollected an incident during his short activity as Chief of the Organization Department of the Armed Forces Operations Staff which he related to me more or less as follows:"

And now comes a direct quotation:

"In the autumn of 1943, probably in late September, there came to me in my office three gentlemen who were unknown to me. One of them belonged to the Army Medical Inspection, the second presumably was from the Research Office of the Army Ordnance Branch, but as to the third I can no longer recall his name nor to which office he was attached. They explained to me that in their opinion, the research work for countering any bacterial warfare from the enemy side was no longer adequate. Their mission, which was exclusively limited to research for defence purposes, would have to be extended. They were convinced that it was essential to exhaust every possibility, even to the extent of a counter-attack, which might take place. The gentlemen urged me to discuss this with the Chief of the OKW (Keitel) . I had only taken over the position of Chief of the Organization Department at the beginning of September, 1943, after a preparatory training period of two months with my predecessor, Colonel Muenz (who fell in the war), and up to then had not heard anything at all about this matter. When making my next report to the Chief of the OKW I drew attention to the matter. He was extremely angry, and said to me in unusually sharp tone 'That was prohibited some time ago and there can be no question of such a thing,' or words to that effect."

[Page 189]

THE PRESIDENT: Dr. Kubuschok.

DR. KUBUSCHOK (counsel for the Reich Cabinet):

Mr. President, gentlemen of the Tribunal.

The proceedings which the prosecution proposes to conduct against the organizations are in many respects an innovation. For the first time organizations with millions of members stand before the judge of a criminal court; for the first time a judgment is awaited covering all the civilian and military leaders of a State. This brings to light the importance as well as the complexity of proceedings of that kind. It therefore follows that it is the duty of the defence counsel of an individual organization to deal generally with all the factual and legal problems of these proceedings.

The prosecution bases its motion on the hypothesis that according to general principles of law there exists a collective criminal responsibility and that in consequence a criminal condemnation of a group as such is also possible. If it attempts to justify this criterion of law by examples from the penal laws of various civilized countries, it becomes clear that all the examples mentioned do not imply the criminal condemnation of the organizations as such, but only the condemnation of the single individual because of his membership in an organization declared criminal. Nor could it be otherwise. Criminal responsibility can only apply to an individual. All criminal law proceeds from the concept of guilt, from the recognition of a criminal act as such and from the sure determination to carry out this act. Only a real person has the faculty to recognize and to exercise a will, and therefore to have a concept of guilt.

THE PRESIDENT: The Russian translation is not coming through; go on now.

DR. KUBUSCHOK: It is another question whether, as a result of the developments of our age, responsibility of the organization is established for the domain in which, because of its very nature, it is bound to harm the interests of the State. This is the domain of administration, not the domain of criminality rooted in ethics. Laws were created to prevent these irregularities, to punish the organizations as such because of their responsibility in the fields of their pernicious effect by means which can be applied to the organizations as such. A punishment under administrative law, or a fine because of the prejudicing of State interests by an organization is practicable, and for the sake of expediency the laws of various countries have regulated it. This procedure is based on a merely objective establishment, independent of an examination of the question of guilt, which is not possible.

Using this as a starting-point, we must examine what the significance is of the declaration which the prosecution demanded.

First of all this implies an establishment of the facts with historical and assessable material.

Furthermore, the establishment of the criminal character of the organization represents a retroactive judgment of it in view of the fact that, in the meantime, it has legally and actually dissolved, and, what is more, it proscribes all members of the organization. That declaration involves them all, and in its effect, to use Mr. Justice Jackson's words, the "bad" elements are segregated from the "good" elements.

Finally, and this is the most decisive and at the same time the most serious implication of that declaration: By virtue of the Control Council Law No. 10 it creates a far-reaching establishment of guilt for the individual member. The Control Council Law No. 10 is as yet a skeleton law, so to speak. Article II (d) provides that membership in an organization declared criminal by the Tribunal is liable to punishment. Once the Tribunal has given such a judgment, the former gap in the criminal provision is filled in. The name of the convicted organization then, so to speak, becomes part of the wording of the

[Page 190]

penal provision. The criminal nature of the organization is now no longer a characteristic of the facts. Therefore, there is no need for the individual perpetrator to know of this characteristic of the organization. The criminal action now to be adjudicated by the Tribunal as a consequence of the Control Council Law arises from the mere fact of membership. Therefore, only the objective and subjective elements of the membership as such are subject to adjudication by the Tribunal. The individual member who in this trial is called to account is faced with an incidental decision already reached, which deprives him of all other subjective and objective pleas which do not concern his membership as such. When the question of his guilt comes up, he can no longer plead that he did not know of the criminal aims of the organization, that he did not foster them, and can no longer advance motives for his entering into the organization or remaining a member of it.

The incidental determination goes even further and affects the very substance of Article II, para. 2 (e) of the Control Council Law, according to which the members of the organization declared criminal also share the responsibility for all the crimes which the condemned organization is charged with having committed.

In actual fact, the conviction of the organization constitutes a conviction of the individual member who belonged to the organization. The fiction of criminal responsibility of the organization thus brings in what no system of criminal procedure which has ever existed has recognized: the guilt of the members is abstractly disassociated from them, and transferred in toto to the organization, with the result that the guilt of the organization having been established, it is no longer necessary to furnish complete proof of the guilt of the individual member.

If one considers these consequences and the inescapable effect which the declaration has of proscribing all members, the definition of "criminal character" to be applied by the Tribunal to the organization because of the absence of legal provisions can have but one result: the individual member will of necessity be included in the Tribunal's argumentation; the concept of the organization can be understood merely as the sum total of individual members. This means that the procedure for the determination of guilt now advocated must be dealt with as a procedure against the individual members and not against what is abstractly termed an organization. This recognition gives rise to the difficulty of the present proceedings, which, according to the statement made by the prosecution, are expected to facilitate the procedure of the subsequent trials; but according to the generally adopted viewpoint of the individual guilt of the perpetrator, this actually means the shifting of the determination of guilt to another Tribunal. It is true that this Tribunal has the advantage owing to the fact that, because of its connection with the proceedings against the 21 major defendants, it can with greater ease and with more uniformity form an idea of the actual basic questions. To shift basic decisions to a Tribunal which of necessity must take a world wide view of all the historical events is, in itself, a wholesome idea, but one should not ignore the limits of what is possible in practice. If the Tribunal had merely been given the task of determining historical events and of judging whether a group of members of the indicted organizations participated in them, this task could be solved with comparative ease. In this case, however, the Tribunal is given the task of making a declaration on the total aims and the total results of the activities of an organization, a declaration which in the light of the foregoing must take into consideration the knowledge, will and, action of each individual member of the organization. This gives rise to the difficulty of finding a basis for a judgment which is in accordance with the wording of the proposed motion.

Another general legal viewpoint cannot be omitted in order to arrive at the definition of the concept of "criminal organization."

By its pronouncement of proscription already inherent in this judgment, and by its incidental determination, which is to be valid for the subsequent proceedings,

[Page 191]

this trial deals with the member of the organization. Because of his membership he is to be outlawed and punished. The law which retroactively declares punishable the membership in the organizations under discussion is undoubtedly a new law. The legal aspect of the retroactive law has already been dealt with in the proceedings against the 21 individual defendants. The prosecution then declared that in applying a retroactive law there is justification for including actions which the perpetrator, at the time of their commission, knew to be an infraction of the general moral and ethical laws or universal laws. However, the case is different when it comes to the indictment of the organizations. The judgment is not now concerned with the fact that an individual perpetrator committed a criminal act regardless of his awareness of its general condemnation, although at the time of commission a law against it did not exist. The point now to be decided is whether a person incriminates himself by being a member of an organization. Assuming that the organization in question actually had and carried out aims which were contrary to the general law of ethics or to universal laws, this does not of itself establish that the member of the organization was aware of his guilt by becoming a member or continuing to be a member. An organization can be criminal, its activities can be criminal, but it does not necessarily follow that the individual member who joins it or remains in it, even though he may have knowledge of it, must under all circumstances take upon himself the guilt of those who set the criminal aims and were active in carrying them out. This becomes particularly evident in the case of an organization whose purpose was originally legal and which subsequently set for itself and pursued a goal partly or entirely illegal. A member who still remains in it may do so from various motives, not necessarily illegal. It is quite conceivable that such a member resolves to remain in the organization because he believes that in so doing he may be able to influence the execution of the illegal aims, that is either to prevent them totally or partly, or at least to attenuate them. In regard to the criminal deed with which he is charged arising from the mere fact of membership in the organization, such a member is not aware of a criminal or even a moral wrong. He can judge his membership in the organization merely in the light of the law which was in force at the time his action was committed. This can only be the law of his own country. A member can be incriminated only on the basis of what the laws and jurisdiction of his country have established in terms of criminal responsibility arising from membership of organizations. I, therefore, must confine my discussion to that which so far was known abstractly to a German national about the law and jurisdiction in connection with that question. There are very few German penal laws which deal with criminal membership of an organization. In his speech of 28th February, 1946, Mr. Justice Jackson discussed these laws. All these laws govern only individual proceedings against a member. The established opinion of German jurisprudence and adjudication on Paragraphs 128 and 129 of the penal code, and other similar provisions of law dealing with the question of membership, is that formal membership is not sufficient to establish the facts involved in a case of criminal law, but rather continued activity to achieve the illegitimate aims of the organization. The member must endorse his membership of the organization by his actions and he must consciously further the illegitimate aims by his deeds. It is not deemed sufficient that the member who has knowledge of the illegitimate aims of the organization outwardly displays them, thus expressing his approval of the aims endorsed by his membership, but he must participate in the achievement of the aims by his own activity in the organization. Therefore, according to German law, it is immaterial whether by outward appearances his membership can be construed to mean that he approves of the aims of the organization and that he thus supposedly enhances in any way the reputation of the organization before the world. This eliminates all cases where proof of the knowledge of criminal aims or even active participation by the member in the achievement of these aims is not forthcoming; and it eliminates particularly

[Page 192]

those cases where the member disapproved of the aims and did everything in his power to prevent the achievement of the aims or at least tried to mitigate them.

A member of an association could, therefore, if he had moral unobjectional reasons for joining or remaining in an association, reply on this abstract German legal principle. Therefore a retroactive law which makes the simple fact of membership punishable cannot possibly furnish the justification sought by the prosecution in the case of individual defendants. Here there is no infraction of a general legal disposition or general moral principle which makes him conscious of the illegality of his conduct. Such a violation is, in so far as the reasons for becoming or remaining a member are not morally objectionable, not established.

In order to establish the concept of "criminal organization" underlying its judgment, the Tribunal must take into consideration the knowledge and activity of the individual member. It must be established that through his membership in the organization the member approved of its criminal aims and actually advanced them by his own activity.

In defining the criminal concept it will have to be assumed that all crimes mentioned in Article 6 of the Charter concerning unlawful warfare, that especially the crimes against humanity, Article 6 (c), must be connected with the planning or execution of such a war.

Therefore in summarizing I should like to establish the following: An organization can be declared criminal only if all the individual members conceived a common plan for an unlawful war, or if they joined in a war which gave rise to the crimes willed by the planners and as stated in the Charter. The individual members, not only must have joined the organization with such knowledge, but they also must have consciously advanced these aims by their activity.

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