dtufail/nuremberg-trials-corpus huggingface dataset:
THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): The Tribunal will consider your application. Perhaps the Tribunal ought to hear if the Prosecution have anything to say in answer to the application made by Dr. Laternser. The Tribunal would also like to see the report and the letter to which Dr. Laternser referred.
SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom): If My Lord will just allow me a moment until I see Colonel Smirnov.
THE PRESIDENT: Certainly.
DR. LATERNSER: Mr. President, the letter is from General Warlimont, who is at present in Nuremberg. He wrote this letter on 23 August here in Nuremberg and I received it yesterday. I found it on my table after I came down from the session. I put it in my briefcase without reading it and noted its contents when I arrived home yesterday. Perhaps I might call the attention of the High Tribunal to the fact that in this letter we are told that after the publication of these bacteriological projects over the radio, this Colonel Buerker whom I have just asked as a witness, came to Warlimont, who was still at Dachau at the time, and told him those facts which I have presented now. Meanwhile General Warlimont was transferred to Nuremberg a few days ago. These are the details connected with this point.
THE PRESIDENT: Whose report is it?
DR. LATERNSER: I was referring, Mr. President, to this letter in which ... by General Warlimont, in which the General informs me of the statements which Colonel Buerker made face to face to him a few days ago in the camp at Dachau. These statements are bracketed and I shall be very happy to submit this letter to the High Tribunal.
SIR DAVID MAXWELL-FYFE: There are two points that occur to me. First, if Dr. Laternser would let us see the letter, it might be possible to shorten the matter in that way, to make some admission as to the statement in the letter. Otherwise, it might be convenient to see an affidavit from the officer and know what he was going to say before we occupy the time by having him examined. If Dr. Laternser would agree to the Prosecution's having the letter translated and examined, we should be able to make a communication to him and, if necessary, to the Tribunal, in the course of the day.
THE PRESIDENT: That seems a convenient course, particularly in view of the fact that the Tribunal expect to finish the entire hearing of the case this week, certainly by Saturday evening, and it will be, therefore, very difficult to get an affidavit by this Colonel Buerker before that time. Therefore, if the Prosecution are able to agree that Colonel Buerker would give that evidence, that probably would be the best way of dealing with the matter.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases; then if Dr. Laternser would allow us to have the letter, we will have it translated and looked into in the course of the day.
THE PRESIDENT: Yes.
DR. LATERNSER: Mr. President, if the witness can be called here through a request by telephone, then I can take his affidavit here or interrogate him briefly. That would be the quickest way. If I have to write to the camp first in order to get the affidavit that way, that would take more time. I assume that the telephone connection is such that we can still call Dachau today to have the witness brought here, and then we can discuss how this evidence will be presented.
THE PRESIDENT: We will see first what the Prosecution say after they have seen the letter.
COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U.S.S.R.): My Lord, I would like to report that I tried to arrange for the possibility of confronting the witness of Dr. Laternser with Schreiber, but this possibility, unfortunately, has been excluded because Schreiber has been sent back to the prisoner-of-war camp. Thus it is impossible to confront the two witnesses because Dr. Laternser presented his request too late. The Soviet Prosecution does not think that it would be advisable to call the witness requested by Dr. Laternser, especially since the witness requested by Dr. Laternser does not, as far as I know, refute the fact itself that there was a secret session of the OKW, which, in my opinion, is the most important fact in that case. That is all that I wanted to report to the Tribunal on the part of the Soviet Prosecution.
THE PRESIDENT: The Tribunal will await the communication. from the Prosecution and they will consider the matter. Dr. Gawlik.
DR. HANS GAWLIK (Counsel for the SD): May it please the High Tribunal: Yesterday I paused at the question whether it would be possible at all to determine those prerequisites which are necessary in order to declare an organization criminal. I shall continue. My statements made hitherto should lead to the conclusion that the evidence of guilt cannot be summarily determined by drawing conclusions from the number of crimes and the type of crime committed, from the knowledge of all the members of these deeds, and from their consciousness of their illegality. It is, on the contrary, necessary that proof of the knowledge and consciousness of illegality should only be considered in special proceedings in the case of each individual member of the organizations; since everything depends on the circumstances, the individual members must be given the opportunity to reply to them. Even if the members might have had knowledge of the real facts of individual criminal acts, that does not prove that they also knew that their organizations were involved therein. Now I shall turn to the next section. A condemnation of the organizations is furthermore in opposition with the principle of penal law: nulla poena sine lege . This principle has already been treated in detail by the defense counsel of the principal defendants. I shall not repeat these statements, but only point out briefly the following points of view. In his Opening Statement, on 20 November 1945, the American Chief Prosecutor said that the defendants could not invoke this principle because they had themselves transgressed it. This argument in no way concerns the members of the organizations, because the members had no influence on the legislation but were themselves objects of the legislation. The Prosecutor of the Union of Socialist Soviet Republics pointed out, in the discussion of this principle in his final speech on 29 July 1946, that the Charter of the International Military Tribunal was an inviolable law and absolutely had to be carried out.
DR. HANS GAWLIK (Counsel for the SD): The Charter is, however, in no way violated and will also be carried out if the Tribunal considers the principle nulla poena sine lege and does not condemn the organization, for Article 9 of the Charter is merely an optional regulation. The Chief Prosecutor of the Union of Socialist Soviet Republics further asserted that the Charter represents principles which are contained in a succession of international agreements and in the legislation of all civilized peoples. International agreements and laws of civilized peoples only show that punishable offenses must be judged in individual proceedings. The principle of collective judgment of groups of persons was up to now unknown in international law. On the contrary it is denied, as I said before, by the theory of international law. Until the first World War it was the custom to include in peace treaties amnesty clauses for war crimes committed. After the first World War the general principle developed that individual members of fighting forces might personally be made responsible after the war for violations of the laws of war. I refer to Fenwick in International Law , 1924, Page 578. The declaration of the chiefs of state of the United States of America, Great Britain, and the Union of Socialist Soviet Republics of 2 November 1943, mentioned by the Prosecutor of the Socialist Soviet Republics, orders expressly that individuals shall be made responsible. This declaration contains no statement to the effect that the collective condemnation of groups of persons is permissible. Article 9 of the Charter is therefore not the expression of an internationally recognized legal maxim. This clause on the contrary creates a new law and cannot be made applicable with retroactive force, for instance for the time since 1921, as proposed by the Chief Prosecutor of the United States, or even for the time from 1933 on, as proposed by the Prosecutor of the Union of the Socialist Soviet Republics in his final speech on 29 July 1946.
DR. HANS GAWLIK (Counsel for the SD): The condemnation of the organizations is therefore in opposition to the principle nulla poena sine lege . In the second section of Part 1, I come to the discussion of the questions of procedure resulting from Article 9 of the Charter. In legal procedure, according to Article 9 of the Charter, an organization or group may be said to be criminal (a) In the trial against a member of such organization or group, and (b) in connection with any action by reason of which the accused is condemned. Both these hypotheses must be realized. Of the principal defendants, only the Defendant Kaltenbrunner, Chief of the Security Police and SD, is involved as member of the SD. It can be gathered from the words, "in connection with any action by reason of which the accused is sentenced," that every action of the member of the organization or group is sufficient to declare the organization or group as criminal. This, however, cannot be the meaning and purpose of this definition, as I should like to illustrate by the law of the United States of 28 June 1940, already quoted. When persons belonging to one of the associations mentioned in the act of 28 June 1940 are arraigned before a tribunal in several different proceedings, an admittedly extensive examination of evidence, though doubtful in its results, must be effected in each proceeding to determine whether the association to which the person belongs fulfills the primary conditions contained in the above legal stipulations. Then it could happen that in one trial it is established that the organization had pursued the purpose named in the law of 28 June 1940, while in other trials the result of the testimony is not considered sufficient.
DR. HANS GAWLIK (Counsel for the SD): In order to avoid these difficulties it could be decreed by a provision of the law that the trial be held against one or several members of the organization, while the other members who have not yet been accused are given the possibility of a legal hearing, and if a member is condemned on account of his membership in an organization within the meaning of the decree of 28 June 1940, the Tribunal makes the declaration, to take effect for all members of the organization, that the organization fulfills the purpose mentioned in the decree of 28 June 1940. Such provisions would achieve the following: (1) the testimony on the aims, tasks, and activities of the organization would be taken only once, and (2) contradictory decisions on the objective tasks, aims, and activities of the organization would be avoided. This purpose is apparently also the intention of Article 9 of the Charter. The situation is to be avoided whereby the military tribunals in the individual occupation zones, in the proceedings against the members of the accused organizations, would have to examine the question of the character of the organization each time by lengthy examination of evidence and perhaps come to contradictory decisions. To be sure, it would ...
THE PRESIDENT: Dr. Gawlik, are you arguing that if any individual were tried under this act of June 1940, that the declaration of this Court under Article 9 would have any effect in the Trial under that act of June 1940? Is that your argument?
DR. GAWLIK: No, Your Lordship. I wanted to explain the stipulation laid down in Article 9 in line with the law of June 1940. The law of June 1940 is something quite different and has no connection with Article 9. 1 wanted to explain in connection with the law of June 1940, which was mentioned by the American Chief Prosecutor, what importance a stipulation would have such as is set down in Article 9.
THE PRESIDENT: What importance are you suggesting it would have?
DR. GAWLIK: Article 9, as I shall set forth, has the following significance: One member must be accused because of his membership in an organization, an organization which pursues crimes according to Article 6 of this Charter. Then, in this trial against one member, all the facts must be cited against this member because of his membership in the organization, and then the facts that have been ascertained, about the aims, tasks, and activities of the organization, if a conviction is obtained, can be used in the trials against the other members; but only the objective facts, not the guilt, for guilt is an individual matter. Your Lordship, may I cite an explanatory example. Here one member of the SD would have to be selected and this member would have to be accused, as I shall set forth, because the SD was part of an organization which permitted crimes against the peace, the laws of war, and against humanity. Now, if this member is punished because of his membership in an organization of that nature, you are objectively determining that the SD is an organization of that kind, therefore the objective findings concerning the aims, tasks, and activities of the SD can be used in the proceedings against the other members.
THE PRESIDENT: Well, I think I follow that argument, based upon the first paragraph of Article 9, is that right? It is based upon your construction or interpretation of the first paragraph of Article 9?
DR. GAWLIK: Yes.
THE PRESIDENT: Are you saying that a decision of this Tribunal upon that would have any importance of effect upon a trial under the act of 1940?
DR. GAWLIK: No, that is only an example.
MR. FRANCIS BIDDLE (Member of the Tribunal for the United States): The law of 1940 is the Sedition Law, is it not? That is the Sedition Law of 1940?
DR. GAWLIK: Yes.
MR. BIDDLE: You say the Prosecution in their argument depended on that act to show that this type of group condemnation was used in other countries -- they made that analogy?
DR. GAWLIK: Yes, I know...
MR. BIDDLE: Yes, you say that is not a true analogy.
DR. GAWLIK: Yes.
MR. BIDDLE: And the reason you say that is that if one individual were tried under the act of 1940 -- do you follow?
DR. GAWLIK: Yes.
MR. BIDDLE: First it would be necessary to show that he belonged to an organization of which the purpose was to overthrow the Government by force or violence, right?
DR. GAWLIK: Yes.
MR. BIDDLE: Now, the court then would have to decide first the purposes of the organization, right?
DR. GAWLIK: Yes.
MR. BIDDLE: Now, you say also that, if a second individual were, at a later time, tried under that act, the Government would again have to prove ...
DR. GAWLIK: Yes.
MR. BIDDLE: ... that the purpose of the organization was to overthrow the Government by force or violence, right?
DR. GAWLIK: Yes.
MR. BIDDLE: And therefore, that the analogy is not true because the finding as to the organization in the first trial against the first individual would have no effect...
DR. GAWLIK: Yes.
MR. BIDDLE: ... on the second trial against the second individual, and that that principle is inherent in all Anglo-Saxon law because the finding of a fact against one individual cannot affect the trial against the second individual, is that your argument?
DR. GAWLIK: Yes. Certainly it would be sufficient for this purpose if the legal effect went only as far as the objective determination of the tasks, aims, and activities of the organization, and the determination of guilt were left to the subsequent proceedings. With regard to Law Number 10, as was pointed out already, the condemnation of the organizations according to Article 9 of the Charter contains not only the objective statement of the aims, tasks, and activities of the organizations, but beyond this purpose the confirmation of the guilt of the members. Consequently, Article 9 of the Charter, besides the legal material confirmation of objective and subjective factual evidence, also has a legal criminal meaning. This juridical aim, which is evidently pursued by Article 9 of the Charter, can, however, only be attained if this decision is so interpreted that the member is sentenced on account of membership in an organization whose aims or expedients are punishable according to Article 6 of the Charter, and not on account of any action. Any other interpretation would have no meaning and no purpose. Only a conviction of the Defendant Kaltenbrunner on account of membership in such an organization could, therefore, according to Article 9 of the Charter, justify the condemnation of the SD. In consideration of these statements the formal hypotheses for the application of Article 9 of the Charter do not appear appropriate to me. It would be necessary for the Defendant Kaltenbrunner to have been charged on account of his membership in the SD as a criminal organization within the meaning of the Charter, and for the character of the SD to have been examined in this proceeding against the Defendant Kaltenbrunner. Only then would there be a case at hand -- as the Chief Prosecutor for the United States has stated -- on the basis of which the criminality of the SD could be examined. Such a charge has, however, not been made against the Defendant Kaltenbrunner.
DR. GAWLIK: The Defendant Kaltenbrunner has not been accused of belonging to the SD as a criminal organization, but is to be sentenced for other punishable offenses. Therefore, taking the statement of the American Prosecutor as a basis, it must be considered as inadmissible that for the proof of the criminality of the SD evidence has been produced which has no connection with the criminal actions with which the Defendant Kaltenbrunner has been charged. Finally, it will have to be examined what connection exists between the period during which the accused member belonged to the organization and the period for which the organization is to be declared criminal. This purely legal question is completely different from the question of the period during which an organization was criminally active. Here we are only concerned with this question: can, in the proceedings against a defendant, the organization of which he was a member be declared criminal also for the period during which he did not belong to the organization? According to the statements made by the American Prosecutor, the criminality of the organization is to be examined only on the strength of the defendant's action. Any action of the defendant limits the examination as to whether the organization can be declared criminal also in regard to time. The evidence in the proceedings against an accused member can only justify any decision regarding the organization for the period during which the defendant belonged to the organization. This limit in time is justified for another reason: Whoever is to be sentenced has the right to be heard. This right to be heard is not met by the making of statements before the court, but includes the right to participate in the whole proceedings.
DR. GAWLIK: According to Article 9 of the Charter, this right to participate in the entire proceedings is obviously not to be annulled, but only restricted to a single person of the organization mentioned, in order to save time, on the principle that the depositions of further members as to the aims and tasks and activities of the organization would be cumulative. A member who did not belong to the organization during the whole period for which the organization is to be declared criminal, can define his attitude toward the question of the aims, tasks, and activities of the organization only for the duration of his membership. According to the principle of legal hearing it is, therefore, necessary that such a member should participate in the proceedings as a defendant, who was a member of the organization during the whole period for which the organization is to be declared criminal. For these judicial reasons the organization can equally be declared criminal only for the period during which the defendant was a member of it. Should an organization be declared criminal for the entire duration of its existence, then a member must be indicted who belonged to it during the whole period. For judicial reasons the SD, therefore, could be declared criminal only for the period during which the Defendant Kaltenbrunner was Chief of the Sipo and the SD, that is, since January 1943. The crimes with which Aemter III and VI are charged must, therefore, have been committed during this period. I now come to the real evaluation of the facts based upon the results of the evidence. This is my second main part, and first of all I shall deal with general statements. The Prosecution has submitted a large number of documents in which the SD is mentioned, thus wishing to prove that the Aemter III and VI were those responsible for them.
DR. GAWLIK: However, the Prosecution itself has said that in common usage, and even in orders and decrees, "SD" was used as an abbreviation for "Sipo and SD." I refer to the trial brief against the Gestapo and SD, Page 19 of the German text, and to the session of 3 January 1946. Even according to the Prosecution, a document mentioning the SD is no proof that this deed must have been committed by members of Aemter III and VI. These may just as well be deeds of the Sipo. That has been proved by the evidence. The witness Von Manstein, one of the highest military leaders of the former German Wehrmacht, was heard before the Tribunal. This witness spoke repeatedly of the SD in his hearings before the Tribunal and the Commission. When I asked the witness what he understood by SD, he declared that he was not quite certain. My further question whether he believed this to mean Aemter III and VI he answered in the negative (Session of 10 August 1946). The shooting of a Commando in the north of Norway was mentioned in the examination of the Defendant Jodl on the witness stand. The Defendant Jodl was told that the prisoners had been shot by the SD. Thereupon the Defendant Jodl declared, and I refer to the record and quote (Session of 6 June): "Not by the SD; that is not correct, but by the Security Police." I furthermore draw your attention to the affidavit of the Defendant Keitel -- SD-52 -- who declared under oath that he only realized during the Trial at Nuremberg that the opinion frequently prevailing also in military circles concerning the tasks and competence of the SD as an executive police organ was not correct. Therefore in military language and decrees the SD was often mentioned when the competent police organ with executive power was meant.