In view of these facts we suggest a consideration of the following program for completion of this trial as to organizations.
1. That the Tribunal formulate and express in an order the scope of the issues and the limitations on the issues to be heard by it.
2. That a notice adequately informing members as to the limitation on issues and the opportunity later to be individually tried be sent to all applicants and published as was the original notice.
3. That a panel of masters be appointed, as authorized in article 17 (e) of the Charter, to examine applications and to report those that are insufficient on their own statements, and to go to the camps and supervise the taking of relevant evidence. Defense counsel and prosecution representatives should, of course, attend and be heard before the masters. The masters should reduce any evidence to deposition form and report the whole to this Tribunal to be introduced as a part of its record.
4. The representative principle may also be employed to simplify this task. Members of particular organizations in particular camps might well be invited to choose one or more to represent them in presenting evidence. that the prosecution has omitted from evidence many relevant documents which show repetition of crimes by these organizations in order to save time by avoiding cumulative evidence. It is not too much to expect that cumulative evidence of a negative character will likewise be limited. might be affected by the declarations of criminality which we have asked. Some people seem more susceptible to the shock of a million punishments than to the shock of five-million murders. At most the number of punishments will never catch up with the number of crimes. However, it is impossible to state, even with approximate accuracy, the number of persons who might be affected by the Declaration of Criminality which we have asked. cause they do not take account of heavy casualties in the latter part of the war, and make no allowance for duplication of membership which was large.
For example, the evidence is to the effect that 75% of the Gestapo men also were members of the SS. We know that the United States forces have a roughly estimated 130,000 detained persons who appear to be members of accused organizations. I have no figure from other Allied forces. But how many of these actually would be prosecuted, instead of being dealt with under the de-Nazification program, no one can foretell. Whatever the number, of one thing we may be sure -- it is so large that a thorough inquiry by this Tribunal, into each case, would prolong its session beyond endurance. All questions as to whether individuals or sub-groups of accused organizations should be excepted from the Declaration of Criminality should be left for local courts, located near the home of the accused and near sources of evidence. These courts can work in one or at most in two languages, instead of four, and can hear evidence which both parties direct to the specific case. tions which, we take it, should be reserved for summation after all of the evidence is presented. But is is timely to say that the selection of the six organizations named in the Indictment was not a matter of chance. The chief reasons they were chosen are these: collectively they were the ultimate repositories of allpower in the Nazi regime; they were not only the most powerful, but the most vicious organizations in the regime; and they were organizations in which membership was generally voluntary. executors of the Nazi Party, and the Nazi Party was the force lying behind and dominating the whole German state. The Reichs Cabinet was the facade through which the Nazi Party translated its will into legislative, administrative, and executive acts. The two pillars on which the security of the regime rested were the Armed Forces, directed and controlled by the General Staff and High Command, and the police forces -the Gestapo, the SA, the SD, and the SS. These organizations exemplify all the evil forces of the Nazi regime. they were not so large or extensive as to make it probable that innocent, passive, or indifferent Germans might be caught up in the same net with the guilty.
State officialdom is represented, but not all administrative officials or departments heads or civil servants; only the Reichs Cabinet, the very heart of Nazidom within the Government, is named.
The Armed Forces are accused, but not the average soldier or officer, no matter how high-ranking. Only the top policy makers -- the General Staff and tthe High Command -- are named. The police forces are accused -- but not every policeman, not the ordinary police which performed only normal police functions. Only the most terroristic and repressive police elements the Gestapo and SD -- are named. The Nazi Party is accused -- but not every Nazi voter, not even every member, only the leaders. And not even every Party official or worker is included; only "the bearers of soverignty", in the metaphysical jargon of the Party, who were the actual commanding officers and their staff officers on the highest levels. Party, just what it isthat we are doing here and compare it with the de-Nazification program in effect without any Declaration of Criminality, in order to see in its true perspective the Indictment which we bring against the Nazi Party.
Some charts have been prepared. This is a mere graphic representation of the proportions of persons that we have accused and which we ask this Tribunal to declare as constituting criminal organizations.
In the first column are the 79 million German citizens. We make no accusation against the citizenry of Germany. The next is the 48 million voters, who at one time voted to keep the Nazi Party in power. They voted in response to the referendum. We make no charge against those who supported the Nazi Party, although in some aspects of the de-Nazification program the supporters are included. Then comes the five million Nazi members, persons who definitely joined the Nazi Party by an act of affiliation, by an oath of fidelity. But we do not attempt to reach that entire five million persons, although I have no hesitation in saying that there would be good ground for doing so, but as a mere matter of practicality of this situation it is not possible to reach all of those who are technically and perhaps morally well within the confines of this conspiracy.
So the voters are disregarded, the 48 million; the five million members are disregarded and the first that we propose to reach are the Nazi leaders, starting with the Blockleiters, which are shown in the last small block, and piled together, amounting to the fourth block on the diagram. responsibilities; responsibilities for herding in to the fold his fifty households; responsibilities for spying upon them and reporting their activities; responsibilities, as this evidence shows, for disciplining them and for leading them. No political movement can function in the drawing rooms and offices. It has to reach the masses of the people and these Blockleiters were the essential elements in making this program effective among the masses of the people and in terrorizing them into submission. moderate one, reaching only persons of admitted leadership responsibilities and not trying to reach people who may have been beguiled into following in an unorganized fashion. and the SS. These were the strong arms of the Party. These were the organizations that the Blockleiter was authorized to call in to help him if he needed to discipline somebody in his block of fifty houses. we accuse any of the twenty or more supervised or affiliated Party groups, Nazi organizations in which membership was compulsory, either legally or in practice, such as the Hitler Youth and the Student League. We do not accuse the Nazi professional organizations, although they were Nazi dominated, like the Civil Servants Organization, the Teachers Organization, the National Socialist Lawyers Organization, although I should show them as little charity as any group. We do not accuse any Nazi organizations which have some legitimate purpose, like welfare organizations.
Only two of these Party formations are named, the SA and the SS, the oldest of the Nazi organizations, groups which had no purpose other than carrying out the Nazi schemes and which actively participated in every crime denounced in the Charter, and furnished the manpower for most of the crimes which we have proved. of these crimes against peace, crimes against humanity and war crimes, it would be a greater catastrophe to acquit these organizations than it would be to acquit the entire twenty-two individual defendants in the box. These defendants' power for harm is spent. That of these organizations goes on. If these organizations are exonerated here the German people will infer that they did no wrong and they will easily be regimented in reconstituted organizations under new names behind the same program. these organizations only by concluding that no crimes have been committed by the Nazi regime. For these organizations' sponsorship of every Nazi purpose and their confederation to execute every measure to attain these ends is beyond denial. A failure to condemn these organizations under the terms of the Charter can only mean that such Nazi ends and means cannot be considered criminal and that the Charter of the Tribunal declaring them so is a nullity. to deal with, would like to be heard on this subject.
THE PRESIDENT: Mr. Justice Jackson and Sir David Maxwell-Fyfe, the Tribunal thinks the most convenient course would be to hear argument on behalf of all the chief prosecutors and then to hear argument on behalf of such defendants' counsel as wish to be heard and after that the Tribunal will probably wish to ask some questions of the chief prosecutors.
MR. JUSTICE JACKSON: That will be very agreeable to us.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal: Mr. Justice Jackson has dealt with the general principles under which the organizations named in the Charter should, in the view of the Prosecution, be dealt with. It is not my purpose to repeat or to underline his arguments. My endeavor is to comply with Paragraph 4 of the statement of the Tribunal made on the 14 of January of this year.
This involves:
(a) Summarizing in respect of each named organization, the elements which in our opinion justify the charge of their being criminal organizations. For convenience I shall refer to these as the elements of criminality.
(b) Indicating what acts on the part of individual defendants in the sense used in Article 9 of the Charter justified declaring the groups or organizations of which they are members to be criminal organizations. Again for convenience, I shall refer to such defendants in the wording of the Charter, as connected defendants.
(c) I shall submit that what I have put forward in writing under (a) and (b) will form the necessary summary of proposed findings of fact under the Tribunal's third point.
May I say one word about the mechanics of the position? I thought that it would be convenient if the Tribunal and the Defense Counsel had copies of these suggestions before I address the Tribunal. In pursuance of this, copies have been given to the members of the Tribunal, of course to the court interpreters, and copies in German have been provided for counsel for the organizations and also for counsel for each of the individual defendants. two addenda, which contain further references to the transcript and documents on a number of points in the original appendices. These addenda are compiled under the numbers of paragraphs and although they are in English, should be readily usable by Counsel for the Defense. The result is that there is the summary in appendices (a) and (b) which I put in and full reference on all the points in the summary to the transcript and in some cases to documents. my appendix (a) and appendix (b) but to indicate how they fit in with the conception of the Prosecution on this aspect of the case. I shall, of course, be only too ready to read any portions which may be convenient to the Tribunal.
Justice Jackson has indicated, and perhaps the Tribunal will bear with me while I repeat his five points.
1. The organization of the group in question must be some aggregation of persons (a) in some identifiable relationship (b) with a collective gerenal purpose. That was Mr. Justice Jackson's first test.
2. Membership in such organization must be generally voluntary, although a minor proportion of involuntary members will not affect the position.
3. The aims of the organizations must be criminal in the sense that its objects included the performance of acts denounced as crimes by Article VI of the Charter.
4. The criminal aims or methods of the organization must have been of such a character that a reasonable man would have constructive knowledge of the organization which he was joining; that is, that he ought to have known what type of organization he was joining.
5. Some individual defendants, at least one, must have been a member of the organization and must be convicted of some act on the basis of which a declaration of the criminality of the organization can be made. organizations, but I conceive that this can be done with brevity, and I therefore propose to deatl with the organizations seriatim.
I take first the Reichsregierung. Under appendix B of the Indictment this group is defined as consisting of three classes:
1. Members of the ordinary cabinet after the 30th of January 1933. The term "ordinary cabinet" is in turn used as meaning-
(a) Reich ministers, that is, heads of departments;
(b) Reich ministers without portfolio;
(c) State ministers acting as Reich ministers:
(d) Other officials entitled to take part in meetings of the cabinet. of the Reich.
no doubt that the first of Mr. Justice Jackson's points, point one, is complied with in that there is an identifiable relationship with a collective general purpose, and that this organization is generally voluntary within point two. of my Appendix A and the broad submission of the prosecution is shown in paragraph two, that is short. It I might be allowed to read it?-
"Owing to their legislative powers and functions the members of the Reichsregierung gave statutory effect to the policy of the Nazi conspirators and collectively formed a combination of persons carrying out the executive and administrative decisions of the Nazi conspiracy." by Article VI of the Charter in paragraphs five, six, seven, and eight of that appendix. should be pleased to read and comment on any that it is desired. legislative, administrative, and executive powers and functions, and that many of its members held at the same time important positions in the Party and in governmental activities outside the cabinet, enormous political power was concentrated in this group. the program of the conspirators. that seventeen of the twenty-one defendants before the Court were members of the Reichsregierung. The prosecution have submitted an enormous body of evidence against these seventeen defendants, and they now submit that it is sufficient to say that these seventeen defendants should be convicted under eac count of the Indictment, and therefore under each portion of Articla VI of the Charter; and that they form the connected defendants with the Reichsregierung, under Mr. Justice Jackson's point number five. my Appendix A and the other paragraphs are of such a character that no one in a ministerial capacity could fail to have constructive knowledge of their nature and intent.
I now pass to the leadership corps of the Nazi Party. Mr. Justice Jackson has indicated that the conspirators required wide instruments of support. Hitler boasted of the complete domination of the Reich and of its institutions and of its organizations, internal and external, by the National Socialist Party. were determined not by the membership as a whole but by the corps of bearers of sovereignty and their staff. These leaders were all political deputies obliged to support and carry out the doctrines of the Party. questions of policy and working measures. The leaders held the Party together, but they also kept the entire populace firmly in the grip of the conspirators through the control of the descending hierarchy of leaders. which they claim to be criminal; and as Mr. Justice Jackson pointed out the staffs of the Reichsleiter, Gauleiter, and Kreisleiter, which are set out in the volumes of the National Socialist Organization Yearbook as being in those positions. Hoheitstraeger, as Mr. Justice Jackson has pointed out, and on that the prosecution again say that there is no doubt that points one and two of Mr. Justice Jackson's criteria are complied with, and they indicate in paragraphs one, two three, and four of Section B of my Appendix A the element of criminality; they indicate in my Appendix B the defendants who are involved; and in a later portion of Appendix B they submit that from the position of these defendants as members of the Leadership Corps and in the government and the Nazi Party, and further, from the close inter-connection between the government of the Reich and the Party it is clear that the Leadership Corps is a criminal organization connected with all the crimes charged against all the defendants in the Indictment, including those who were in the Leadership Corps and elaborated before the Tribunal in the individual presentations.
and the defendants are the core of the Nazi Party. Again the prosecution say that no one living in Germany and taking part in the management, which in this case means literally the ordering of the Nazi Part, could fail to have constructive knowledge of the intentions of its leaders and the methods of carrying these out. This inner circle is in a very different position from even the best-informed opinion outside Germany.
I now pass to the SS, including the SD. The Prosecution respectfully reminds the Tribunal of the statements regarding the composition of the SS and its history, set out shortly in Appendix B of the Indictment, on page 36 of the English text. The Prosecution stands by these statements, which it submits are clear. I do not intend to read them at the present moment.
The Tribunal has heard in the case regarding the SS (the transcript pages 1786 to 1889 and the case regarding concentration camps pages 1399 to 1432), and also the evidence as to the defendant Kaltenbrunner, of which the reference is given in the addendum. They have also heard in the cases of the French and Soviet delegations additional mountains of evidence with regard to the SS. It is submitted that there is no difficulty on the first three of Mr. Justice Jackson's points, and that the criminality of the SS has been proved several times over. of Section C of my Appendix A, that the crimes of the SS were commited, first, on such a vast scale, and secondly, ever such a vast area that the criminal aims and methods of the SS, which have staggered humanity since this trial opened, must have been known to its members. It was difficult to drive from, one city of Germany to another without passing near to a concentration camp, and every concentration camp contained its SS crimes. In my Appendix B the Tribunal will find the members of the SS who are defendants set out, and in the second part, a summary of the crimes of the defendant Kaltenbrunner. The Prosecution gives to him a sinister particularity, While relying also on the crimes of the other defendants who were members,
DR. PANNENBECKER (counsel for defendant Frick): I should like to point out that the listing of Frick in this position is apparently fallacious since in the list of offices that Frick occupied this is not mentioned as one of them.
THE PRESIDENT: Do you mean not a member of the SS?
DR. FANNENBECKER: In this list it says that Frick was a member of the SS. That is not so. And in the affidavit that he himself delivered he denies that fact.
DR. SEIDL (counsel for defendant Frank): Speaking for Frank: In the statements just made by the Prosecutor the defendant Frank is listed as a member of the SS. Already earlier in the trial the American Prosecutor submitted Document 2979 PS, U.S.A. Exhibit No. 7. This document shows that Frank was at no time a member of the SS or, as it is asserted in the Indictment, was an SS General. ago, at the time when the Indictment was being read against the SSccriminal organization, the name of the defendant Doctor Frank was not mentioned. I can consequently assume that in this case a mistake has been made in the crawing up of this list.
DR. THOMA (counsel for defendant Rosenberg): I should like to make the same statement made by my colleague Doctor Seidl in reference to Rosenberg. Rosenberg is listed as a member of the SA. He was never a member of the SA, and I should like, in my turn, to bring this to the attention of the Tribunal.
SIR DAVID MAXWELL - FYFE: The defendants, of course, will have every chance of disproving these matters, My Lord, but they are all contained in the Indictment.
(There was a noise in the courtroom) I will begin again.
tions, which are all contained in the Indictment; but in view of what has been said, I shall personally check the matter myself.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FIFE: Then I proceed to deal with the Gestapo. Again the Tribunal will find the construction and history of the Gestapo set out in Appendix B of the Indictment, and the criminality alleged is set out in paragraph 1, 2, and 3 of Section D of my appendix. The second addendum, the Tribunal may care to note, gives the most detailed references to each of these alleged acts of criminality. The Prosecution submit that from these points which are mentioned it is clear that the first four of dr. Justice Jackson's points are complied with. The provisions of Articles 7 and 8 of the Charter, in the submission of the Prosecution, make it impossible for the defense to rely on the official background of the Gestapo, and therefore, as I say, we submit that this clearly comes within the first four of Dr. Justice Jackson's points. If the Tribunal will refer to my Appendix B they will see that the defendants Goering, Frick, and Kaltenbrunner are alleged to be members, and in the latter part of that appendix we allege, as is the fact, that the crimes of these defendants were committed in their capacities as responsible chiefs of this organization.
Then we come to the SA. I again refer to paragraphs 1 and 2 of Section E of my Appendix A, and I ask the Tribunal to note that apart from the correct statement of its phases and periods of activity, each of the elements of criminality contained references to the transcript where these matters are proved. I remind the Tribunal of Mr. Justice Jackson's statement, which shows that the Prosecution have omitted all connected bodies, even including those who had only been members of the reserve, about which there can be any argument, even a sentimental argument, as to their full connection.
THE PRESIDENT: We will adjourn now.
(A recess was taken until 1400 hours.)
States of America, the French Republic. The et al.
Defendants, sitting at Nurnberg,
SIR DAVID MAXWELL-FYFE: If the Tribunal please, before the Tribunal adjourned I was about to mention again the bodies on the fringe of the SA, which the Prosecution did not seek to be included in the organizations.
First, wearers of the SA Party Badge. The Tribunal may remember that Colonel Storey explained that they were not strictly members. He wanted to have that point quite clear. units controlled by the SA, but not members of the SA. reserve. who were apparently incorporated in the SA, but from the names that have been given, and the membership, we do not ask for their inclusion. connected with the SA, and it is alleged by the Prosecution that the connection of the SA with the conspiracy was so intimate that all the acts of the defendant Goering would justify the declaration prayed for. and High Command of the German Armed Forces. As in this case the Prosecution have drawn an arbitrary line, I may perhaps be allowed to recall briefly its constitution. under this heading, page 37 of the English text, they will see that the first nine positions enumerated are special command or chief of staff positions. There were 22 holders of these positions between February 1938 and May 1945, of whom 18 are living. The tenth position, of Oberbefehlshaber, includes 110 individual officers who held it.
The whole group varied from a membership of 20 at the beginning of the war to about 50 in 1944 or 1945, that is, at any one time. not artificual in reality, because on pages 2115 and the following pages of Colonel Telford Taylor's presentation on it -- and I refer especially to pages 2125 and 2126 -- it will be seen how the holders of the positions enumerated met in fact and in the flesh. This, in our submission, clearly comes within the interpretation of "group" in the Charter, which, as Mr. Justice Jackson pointed out, has a wider connotation that "organization", and we submit that you cannot hold men in the top command against their will. It would be impossible for them to carry on such work on such a condition. be found not only the references in the transcript, but the references to the captured documents which prove, out of the mouths of the members of this group, the criminality alleged against them under each part of Article 6 of the Charter. These documents also show their actual knowledge and therefore a priori, their constructive knowledge of the nature of the act.
In my Appendix B., the five defendants involved are set out, and in the latter part of that appendix, the connection of the group, and especially of the defendants Keitel and Jodl, is emphasized. It is submitted that these facts prevent any difficulty being encountered with regard to this group on any of the five criteria which we say should guide the Tribunal, in Appendices A and B which are before the Tribunal in writing clearly indicate the findings of fact for which the Prosecution ask.
My friend, M. Champetier de Ribes presents the journal.
M. CHAMPETIER DE RIBES: Mr. President and gentlemen, I should be careful not to add anything to the very complete statement of Sir DavidMaxwell-Fyfe were it not that I desire, in full agreement with my fellow prosecutors, respectfully to draw the Tribunal's attention to two clauses of French municipal law which deal with questions comparable to those which we are considering today, and in connection with which I believe the French Legislature has had to solve some of the problems with which the Tribunal is concerned, and especially the question which the Tribunal has laid down, namely that of criminal organizations.
lays down the general principle of the association of criminals by enacting that:" any association, whatever its duration or the number of its members, any understanding made with the object of preparing or committing crimes against the person or against the property, will constitute a crime against public peace." fact, that in the course of the last few years France has had to apply this general principle to organizations or associations which resembled greatly those which we are asking you to declare criminal. of which menace beyond the borders of the countries which it has contaminated. Thus, during the years 1934 to 1936, diverse groups had been formed in France, which following the example of their German and Italian models, were organized with the intention of substituting themselves for legal government in order to impose in the country that which they called order, and to create, in fact, disorder. The law of the 10th of January 1936, promulgated on the 12th of January in the Official Gazette which I submit to the Tribunal, decreed dissolution of the groups and enacted severe penalties against their members. With the Tribunal's permission, I shall read the first two clauses of this law:
"Article I. Shall be dissolved, by decree of the President of the Republic in session with the Cabinet, all associations or de facto groups which:
"1. Would cause armed demonstrations in public thoroughfares.
"2. Or which, with the exception of military preparation societies sacntioned by the Government and societies for physical education or sport, which by their structure and their military organization would have the characteristics of a fighting group or a private militia.
"3. Or which would aim at jeopardizing the integrity of the national territory, or at attempting to alter by force the republican form of government.
"Article II. Any person who will have taken part in the maintenance or the reconstitution, direct or indirect, or the association or group as defined in Article I, will be punished by a term of six months to two years imprisonment, and a five of 16 to 5,000 francs." of these associations for the mere fact of "having taken part in the maintenance or the reconstitution, direct or indirect, of the association", the law of the 10th of January 1935 has recognized and proclaimed the criminal character of the association. 1936 are concerned with the question as to whether the association crimes against person or property.
It also condemns any de facto Groups.
In that way, the law of the 10th of January, 1936, speaking and implication of the words "Group," or "Organization," as we today who "even without offending against an existing criminal statute, will have made themselves guilty of any definitely anti-national activity."
after having given "a general definition of the offense" has "defined its extent by enumerating the essential facts which it comprises."
"The crime of national indignity is constituted" by the fact of "having participated in the body of collaboration, whichever it might have been, and more especially one of the following:
Le Service d'Ordre Legionnaire (Legion of Order), La Milice (Militia), the Group called 'Collaboration,' La Phalange Africaine (African Phalanx), and the crime of national indignity.
And whether these Organizations were described as criminal.
That is what we are asking you to do with defense before a competent tribunal.
We are asking you only to so low in a few years, to the ranks of barbarism.
It is the shame disposal of ancient barbarity.
It is very true that technical
GENERAL RUDENKO: Your Honors, let me teoll you, first of all, criminality of the Organizations.
It seems to me that to clarify this problems:
first, the problem of the material law; just what law; what evidence, what witnesses, and in what order those can be Organization does not stand before the Tribunal; neither does the stand before the Tribunal.
The Charter of the Tribunal provides, Tribunal.
It is within the jurisdiction of the Tribunal to declare an Organization criminal.
As the Tribunal declares this or that locally members of Organizations.
The nature of the Organizations Article 10 recognizes the situation.
The Charter provides two legal results of declaring an Organization criminal:
first, the right, trial members of Organizations which the Tribunal declared criminal;criminal by the national tribunals; neither does it mean that without the jurisdiction of the national tribunal in just one way.
The national the legal codes of the respective countries.