dtufail/nuremberg-trials-corpus huggingface dataset:
HERR BABEL: Mr. President, before I started reading this motion, I pointed out that already on 15 January of this year I made a motion to separate the procedure, and to my knowledge no ruling has yet been given. I have tried to repeat in part the reasons for this motion which I made at the time. If the Court does not think it desirable or necessary, I shall refrain from doing so.
THE PRESIDENT: I don't see any relevance in what you have been reading to us now, either to the question of whether there should be a separate trial or to any other questions with reference to the criminal organizations.
HERR BABEL: Mr. President, under these circumstances I shall not read those further arguments, which may be known to the Court from my written motion, and I shall come to the conclusion of what I still wish to say.
THE PRESIDENT: Dr. Babel, the Court will, of course, consider the suggestion which has been made, I think, by other counsel for the organizations as well as the suggestion which I understand you are now making, that it is necessary to have a separate trial. The Court will consider that. But what you have been saying to us does not appear to me to have any relevance to that.
HERR BABEL: Mr. President, in my former motion I merely wanted to point out the difficulties I had -- since I was still alone and had no assistance -- before I was in a position to devote myself to my real assignment; for that reason also, in my opinion, my motion for separating the trial was well founded at that time. Part, or the greater part, of what I said then has been repeated now. What I have read just now, and the remainder of my motion, might have I March 46 more significance today, but I shall refrain from reading it, since the question of the separation of the trial has already been brought up and argued by others. Therefore, for the rest, I can also join in the arguments brought forward by my colleagues in this regard. In this connection I should like to point out that on 19 January 1946 I made a motion to be relieved of the defense of the SD because of conflicting interests. I believe I ought to call this to your attention as I do not plead today for the SD, because I have been waiting for a ruling on my motion. I reserve for myself the right to make further statements after I receive a copy of the record of 28 February, in particular on the question of the membership of individuals and groups of persons in the SS, on the definition of the lines of demarcation between the SS and the governmental sector, on limitations as to periods and organizations, on the question of voluntary membership, on limitation of responsibility for other reasons according to criminal law, and on the jurisdiction of the SS courts. In view of the tremendous amount of work which I had to do so far, I have to this date not yet been able to take a stand on all these points. I wish to make the remark that the suggestions made by the Prosecution and several of the Defense Counsel as to the presentation of evidence seem untenable to me. They would entail a considerable restricting of the Defense. To carry them out seems to be impossible also for reasons of time. This concludes my argument.
THE PRESIDENT: The Tribunal will now adjourn. [The Tribunal recessed until 1400 hours.] Afternoon Session
THE PRESIDENT: The Tribunal has decided to alter the order of procedure, and they will therefore not sit in open session tomorrow but sit in closed session tomorrow, Saturday; and sit on Monday in order to hear the applications for witnesses and documents by the next four defendants in order. Now, there is another counsel for the organizations to be heard, is there not?
DR. LATERNSER: The main subject of the discussion which, by request of the Tribunal, has taken place today and yesterday is the question as to what is relevant evidence in the case against the indicted organizations. As a preliminary question the concept of the criminal organization in particular must be clarified. Consequently it is not the task of counsel for the organizations to plead in detail; that should be reserved for the later final address by Defense Counsel, but rather the subject of discussion is definitely limited, as far as the Defense is concerned, to the above-mentioned question of the relevancy of evidence and also to certain fundamental issues which must be touched upon in order to judge the relevancy of evidence. According to the sequence provided by the Indictment, our colleague Dr. Kubuschok spoke first as defense counsel for the Reich Government. In his address he dealt with the general issues in compliance with Point Number 1 of the decision of the Tribunal of 14 January 1946. In order to avoid unnecessary repetition, I should like to make the legal arguments of my colleague Kubuschok, to their full extent, part of my own argument. At the same time I submit the request that the Tribunal pay particular attention to the contents of these arguments presented yesterday. With regard to the definition of the concept "criminal organization," I should like to make a few short remarks and additional statements. It is obviously a well-considered provision of the Charter that the Tribunal can declare the indicted organizations criminal; it is thus not obliged to do so but can exercise its free and conscientious judgment. If the Tribunal comes to the conclusion that the declaration of the group as criminal can or has to lead to impossible, untenable, and unjust consequences, then the rejection of the Prosecution's demand would as a matter of course be mandatory.
DR. LATERNSER: It has already been stated by those who have just spoken what grave legal consequences would result, as far as the members are concerned, from a declaration of the criminality of the groups and how the undoubtedly vast number of innocent members would also be affected by that declaration. As far as these consequences for the members are concerned, it cannot be emphasized strongly enough that all the members of the groups and organizations will be affected directly by a declaration of criminality, insofar as by the verdict of the Tribunal it would irrefutably be established that they are accused of a crime, namely, the crime of having belonged to a group or organization which has been declared criminal. That this membership is a crime already follows clearly from Articles 10 and 11 of the Charter. In Article 10 it is stated that the competent courts of the individual occupation zones have the right to put all members on trial because of their membership in groups or organizations which have been declared criminal. It is further enacted that in those trials the criminal nature of the group or organization shall not be questioned. Thus, the members can be indicted because of membership in the group or organization; and, if every indictment before a court can, of course, deal only with a crime, then it is already established that membership in the group or organization is a crime. Furthermore, in Article 11 of the Charter membership in a group or organization declared criminal is specifically designated a crime. That follows from the very words of the article, which reads: ". . . with a crime other than of membership in a criminal group or organization...." In the same way in the law of 20 December 1945, issued to implement the Charter, membership in a group or organization declared criminal is specifically declared a crime.
DR. LATERNSER: Consequently the finding of the criminal character of the group or organization by the Tribunal will state with immediate effect that all members, because of their membership in the group or organization, have committed a crime, and this must necessarily lead to untenable consequences. It is not correct to say that these members can exculpate themselves in the subsequent trials before the individual military courts. If mere membership in the organization is defined as a crime, they can take exception to the charged guilt only by declaring that they were not members of the group or organization. If Justice Jackson is of the opinion that in the subsequent trials they could plead that they had become members under duress or by fraud, the admissibility of this plea nevertheless seems to be highly questionable. Justice Jackson himself pointed out that a plea of personal or economic disadvantages cannot serve as grounds for duress. What other kind of duress could be considered relevant? According to German criminal law only physical coercion would be left for consideration, and that only for the period of its duration. In this case also fear of personal or economic disadvantage is no ground for exculpation as far as remaining in the group or organization later on is concerned. Thus a member of a group or organization declared criminal has in the subsequent trial only the possibility of pleading certain extenuating circumstances which might influence the degree of penalty. The question is now whether, according to the principles of justice, these inevitable consequences are tolerable; so far as innocent members are concerned, this question can be definitely answered only in the negative.
DR. LATERNSER: Justice Jackson is further of the opinion that there probably are no innocent members of the organizations concerned, because it is simply incomprehensible to sound common sense that anyone joined the indicted groups or organizations without having known from the very beginning, or at least very soon after, what aims and methods these groups and organizations were pursuing. This point of view may appear comprehensible to the retrospective observer, after the crimes charged to the groups and organizations have collectively been brought to light. That the mental attitude of the members to the aims and tasks was or could have been entirely different at that time cannot be doubted by anyone. If one were to subscribe to Justice Jackson's interpretation, then the provision of Article 9 of the Charter providing for a hearing of members on the question of the criminal character of the organizations would make no sense at all. It would then be entirely superfluous to admit any sort of evidence in respect to this, and it would furthermore be unnecessary to discuss the criminal character, as the Tribunal itself has suggested. If we follow the Prosecutor's line of thought that, according to sound common sense, it is obvious that all the members took part in the crimes mentioned in Article 6 of the Charter, then the provisions regarding the Common Plan or Conspiracy would suffice altogether as grounds for prosecuting and punishing these members who, without exception, are to be considered guilty. In this case the structure of the declaration of criminality and the stipulation of its consequences would in no way have been necessary. From the following deliberation it is to be inferred that the declaration of the criminality of the organizations is not necessary and can be dispensed with altogether. Justice Jackson declared that, of course, no one intended an indictment of the innumerable members of the groups and organizations, which would result in a flood of trials which could not possibly be dealt with in one generation.
DR. LATERNSER: What will be done is to seek out and find only those who are actually guilty and have them brought to trial. Thus it is not in any way necessary to create such a large circle of members through the declaration of criminality and to select the guilty from this circle. This selection can take place without creating this circle. That in a group or organization of many members there were obviously a number of innocent members is a fact of common experience which cannot be disputed, and this thought is taken into consideration not only by the Charter, but also by the Prosecution in that they want to exempt from one of the organizations the category of those with low-grade routine tasks, obviously because of the conviction that these had nothing to do with crimes, for otherwise they would have been members of or participants in the criminal conspiracy. Besides this category, however, a number of other members come into consideration whom one cannot speak of as guilty in the legal sense of the term; for instance, those people who did not give any thought at all to the aims of the group. All these people would of necessity not only be dishonored by a declaration of the criminality of the group or organization but, if indicted, would also be punishable because of mere membership. Incidentally it might be mentioned that eventually their economic existence would be menaced or destroyed because of their membership in the group or organization and the defamation brought about by the declaration of criminality. But again it must be asked whether all these consequences have been weighed and can be justified in view of the basic principle of all criminal law systems, according to which only the guilty are to be punished, and in view of the principle of substantive justice. That ought to be answered in the negative all the more if these members who would necessarily be affected by the verdict of the Tribunal were not granted any legal hearing in this Trial.
DR. LATERNSER: It has already been pointed out that granting a legal hearing to the vast majority of the members is unfeasible for technical reasons. Thus the unique situation arises that the Tribunal would pass verdict on all those members without knowing whether or not numerous innocent members would be affected thereby. If Justice Jackson further pointed out that the issue under dispute is nothing new, but can be found in the penal codes of all other states and in particular also in Germany, this view likewise can in no wise be supported. The German laws and precedents quoted are of a character entirely different from the structure of the Charter. In Germany, as in almost all other states, the punishment of groups and organizations is not known at all, only the punishment of individuals is known. No German judgment has yet been passed by which a group or organization as such was subjected to penalty or was declared criminal. It is very well possible, though, that in the trials against members of criminal organizations the criminal character of the organization was stated in the opinion. This statement, however, had effect only on the convicted members and not on other members who were neither indicted nor convicted. The provisions quoted of Articles 128 and 129 of the German Penal Code are provisions which corroborate exactly the view of the Defense, because they threaten only the participants in an illegal association with penalties and not the association itself. Also, the French laws quoted deal merely with the threat of punishment for participation and membership in certain associations with punishable pursuits. A possibility for declaring the association itself criminal is not to be found in these legal sources either. The French Prosecutor quoted, first of all, Articles 265 and 266 of the Penal Code. The first provision forbids the forming of associations with a punishable pursuit; the second subjects only the participants to penalty.
DR. LATERNSER: Likewise, the French law concerning armed groups and private militia, of 10 January 1936, provides only for the punishment of the participants. The same is true of the other law quoted, that of 26 August 1944, which provides only for individual responsibility. None of the above-mentioned laws allows the punishment of organizations. Consequently, they can support only the legal view of the Defense. If in England and America -- as exceptions -- associations as such can be punished, that can be done only on account of certain groups of offenses and only to the effect that either the dissolution of the corporation may be pronounced or fines imposed. Naturally in such proceedings it is a necessary condition for the Prosecution and the Defense that the corporation as such be represented during the proceedings by its functionaries and representatives and be able to defend itself; whereas in this Trial the groups and organizations as such are summoned before the Court, although they do not exist any longer and although their functionaries are absent. It has never been the case in any country that groups and organizations are declared guilty or criminal and that on the basis of this declaration of the Court all members of the groups or organizations can be or must be indicted and punished because of their mere membership. This is the completely novel and odd feature which stands in contrast to the existing law of any country. I believe it is permissible to say that neither England nor America would ever be willing to pass such a law for their own population. If all this proves that the declaration of criminality demanded must automatically result in grave and completely untenable consequences as demonstrated, then the demand of the Prosecution should be denied in the name of justice. The Charter, which in no way obliges the Tribunal to make such a declaration, would also not be violated thereby.
DR. LATERNSER: In this way an injustice which could only injure integrity of the judgment of the Tribunal in the eyes of our contemporaries and of posterity would be avoided. My arguments lead to the following conclusion: 1. The Tribunal should, because of the legal arguments presented, as a matter of principle, refuse to declare any group or organization criminal; it is within the Tribunal's power to do so. 2. If this is not done, the concept of the criminal organization must be so defined that the innocent members are protected from serious consequences. This can be done only by means of a definition, as suggested yesterday by my colleague, Kubuschok. Accordingly, those subjects of evidence proposed by him should also be admitted if they are not a priori irrelevant because of the fact that, for legal reasons, the Prosecution's demand of a verdict against the groups and organizations cannot be granted. It is necessary that the following additional evidence be admitted for the group of the General Staff and the OKW, which I represent: (1) The group included under the designation "General Staff and OKW" is not such a group and is not an organization. My explanation of this subject of proof is as follows: (a) Justice Jackson is of the opinion that the concept of "group" is more comprehensive than that of "organization," that it does not have to be defined but can be understood by common sense. To this I must object that those who occupied the highest and the higher command posts represent the heads of a military hierarchy as it is to be found in every army in the world. There was no relationship whatsoever evident among the members of this group. Nor can such relations be assumed merely because of the official connections between the various offices or because of the channels which actually existed.
DR. LATERNSER: Moreover, since the circle of people whom the Prosecution wish to include in this group is admittedly composed in a completely arbitrary way, simply on the basis of official positions occupied within a period of 8 years, there is no evident tie which could justify the assumption of the existence of a group. But to form a group it is absolutely necessary to have some connecting element in addition to the purely official contact between offices. (b) Aside from the Chiefs of the General Staffs of the Army and the Air Force, none of the individual persons in the group belonged to the General Staff. The German General Staff of the Army and the Air Force -- the Navy had no admiral staff -- was headed by the Chief of the General Staff and consisted of the General Staff officers who acted as operational assistants to the higher military leaders. For these reasons the designation or name given by the Prosecution to this fictitious group under indictment is false and misleading as well. (2) The following subject of evidence, in addition to those advanced by my colleague, Kubuschok, should be admitted for the group of the General Staff and OKW: The holders of the offices forming the group did not join a group voluntarily, nor did they remain in it voluntarily. The admission of this subject of evidence is necessary for the following reasons: Justice Jackson stated yesterday that joining a group, or membership in it, must be voluntary. This condition is not present in the case of the group which I represent. The vast majority of the indicted higher military leaders had come from the Imperial Army and Navy; all of them had served in the Reichswehr long before 1933. They did not join any group, but were officers of the Armed Forces and got their positions, which they were not at liberty to choose, only on the basis of their military achievements. They also were not at liberty to withdraw from these positions without violating their duty of military obedience.
DR. LATERNSER: (3) All evidence is to be admitted which refers to the charge against the group of the General Staff and the OKW as contained in the summary of arguments. Evidence on these points could be presented in the following way: (1) A number of people concerned should make sworn affidavits from the contents of which conclusions could be drawn regarding the typical attitude of a certain number of those involved. (2) Some typical representatives of the group ought to testify before this Court about the subjects of evidence submitted. (3) Every other sort of evidence having some probative value should be admitted to the extent necessary. We request that this evidence should be admitted at present to a full extent for the time being without prejudice to a subsequent decision on the weight of this evidence, just as Justice Jackson suggested the same thing on 14 December 1945 with regard to the evidence offered by the Prosecution, for at present a binding decision on the relevancy of the evidence offered cannot be reached. Whether this evidence is necessary at all and whether or not and to what extent it is relevant depends on the following: (1) Whether the Tribunal, following the arguments of justice and fairness as submitted and by authority of the power given it, will decline to declare these groups and organizations criminal. (2) Or, if this is not done, in what way it defines the concept of criminal groups and organizations. These two points cannot be definitely decided at present, since there is still a great deal to be said about these thoroughly difficult and significant and completely novel problems, as well as about the impressive address delivered by Justice Jackson. One of my colleagues has undertaken to work out a comprehensive memorandum on all these problems and questions which will be ready in about two or three weeks. I request that additional argument pertaining thereto be reserved for me and my colleagues at that time.
DR. LATERNSER: One last point: The Tribunal ought also to reach a ruling as to what is to be done about the last word for the organizations.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal would be glad to hear you in reply.