dtufail/nuremberg-trials-corpus huggingface dataset:
DR. GAWLIK: I refer to the statement made by Professor Exner, and I wish to point to the American Law of 28 June 1940, previously mentioned, which the Prosecution cited as an illustration of the fact that organizations can be declared criminal. This law expressly requires knowledge of illegitimate goals. In English law, too, it is a general practice that a person cannot be convicted unless it can be proven that guilty intent was involved. The argument of the Prosecution, that knowledge on the part of some of the members is sufficient for sentencing the organization, could be upheld if Law Number 10 were drawn up differently; in other words, if by reason of Law Number 10 an investigation were provided to determine whether the individual member had knowledge of the incriminating goals and activities of the organization. That is not the case, however. Law Number 10 provides for conviction of each member merely by reason of the fact that he belonged to an organization which has been declared criminal. The members can no longer argue in subsequent proceedings that they did not know of the criminal goals and purposes. The opinion held by the Prosecution would thus mean that in subsequent proceedings persons will be convicted who had no knowledge of the criminal goals or activities. This would be contrary to the fundamental principle known to penal law in the entire world-which I previously referred to-according to which proof of objective facts is insufficient for conviction and the presence of guilt must also be proven. In view of this, and since guilt can no longer be established in subsequent proceedings, it is imperative that the guilt of all members be established in this Trial before the International Military Tribunal. Only to the extent that this guilt has been established could the organization, or individual groups as a part of the organization, be declared criminal. Guilt also includes cognizance of illegality.
DR. GAWLIK: In this respect, too, I should like to refer to Professor Eimer's argument, whereby he established convincingly that not every serious crime-and only serious crimes are being tried here-must necessarily presuppose cognizance that something punishable is being done, but certainly, that it is wrong to act in that manner. The perpetrator must be cognizant of the fact that he commits an infraction of the law, or that he is acting in a manner considered naturally wrong. Professor Eimer has also established that these principles prevail not only in German penal law, but he also cited a number of examples from English law. In other words, the members are not only required to know the goals or methods of the organizations, in accordance with Article 6, but must also be aware that these goals or these methods are illegal, or in any case contrary to law. In that connection the question arises whether all members must have such cognizance, or whether it suffices that only some of them have it. Because-for reasons which I already explained-only such a person is liable to punishment who was conscious of the illegality, and because such consciousness can no longer be examined in subsequent proceedings, it must be established in the present proceedings for all members, for otherwise those members might be, punished by virtue of Law Number 10, who did not have this consciousness. To renounce the requirement of cognizance of illegality would unduly raise the demands made on simple members. The cognizance of illegality may equally be absent when a perpetrator executes an order given. The provision of Article 8 of the Charter merely eliminates superior orders as a general reason for exclusion from punishment; but it is possible for an order to exclude the cognizance of illegality in individual cases. He who has recognized the illegality of his action cannot, according to Article 8, justify himself by reference to an order. In a case, however, where a person considers his action right and legal by virtue of an order given him, he must be exonerated.
DR. GAWLIK: The Provisions of Article 8 of the Charter can only have this sense and this meaning. The question whether the plea of superior orders furnishes grounds for exoneration is not uncontested in international writings. Article 8 of the Charter rules on this controversial question that the perpetrator cannot plead superior orders. Therefore I do not need to discuss this controversial question in greater detail. All authors, however, who deal with this question assume that the subordinate knew that the order was illegal and unjust. They deal mainly with the question as to whether the subordinate, although he was aware of the illegality and unlawfulness of the order, had grounds for exemption from punishment. It is to be concluded here from that in the absence of such knowledge, which may also be founded on an order, the perpetrator is exempt from punishment. The French Prosecutor also stated that superior orders do not cover the execution of a deed which was obviously punishable. It would lead to an illogical result if one considered it inadmissible to cite an order as proof of the lack of illegality. He who carried out an act without -an order would not be punished if he lacked the knowledge of its illegality. If, however, he commits the same deed on the strength of an order, he would have to be punished, unless one were to agree with my point of view. Such a misinterpretation would contradict the meaning and purpose of the Charter. Orders can, however, place the perpetrator under a state of compulsion, and for that reason -exclude guilt. It is a general rule of English law that any person is protected against punishment who has committed crimes under the stress of force employed by other people, and not as a result of unhindered and deliberate intention. According to English law this protection also exists in the relationship between the state and society, such as between the supreme power and the subjects of the state, and obedience to the ruling powers will act as an excuse if bodily force is exercised or imminent.
DR. GAWLIK: Thus I arrive at the following result: An organization could only be declared criminal if (1) its purposes or expedients correspond with the requirements of Article 6 of the Charter; (2) all members knew these purposes and expedients; (3) all members were conscious of the fact that these purposes were illegal or unjust. This result gives rise to two further questions: 1. A legal one, namely, whether the conviction of an organization can be brought into harmony with the general rules*of international law and national law. 2. A factual one, namely, whether the necessary elements of the case can be established at all for all members of the SD, and whether a trial of this kind can be held at, all. Before I begin to discuss the legal question I take the liberty of drawing the attention of the Tribunal to the fact that the stipulation in Article 9 was not a compulsory rule, but only an optional one. Even if the conditions are present for declaring an organization as criminal, the Court can refrain from doing so. It may be assumed that the legislators pursued a purpose in not prescribing the conviction of the organizations as compulsory even if all the necessary conditions were fulfilled. It may be presumed that the legislators who promulgated the Charter desired to submit Article 9 to an examination under the rules of international law. By this the authors of the Charter apparently, with regard to Article 9, wished to transfer the judge's right of examination to the International Military Tribunal. I expressly emphasize, in order to avoid any misunderstandings, that this refers only to Article 9, because in other respects the Charter is a mandatory rule. The International Military Tribunal was to examine Article 9 to determine whether this rule constitutes a further development of the legal concepts of international law and national laws, or whether it is in contradiction to these rules. The fact that Article 9 is a rule previously unknown in law especially points to the existence of such an intention.
DR. GAWLIK: The question as to whether a formal law is in contradiction to other laws cannot be immediately investigated when the law is issued. This can only be determined in the course of the practical application of the law and after research by scholars. English constitutional law, with its special concept of the constitution, does not recognize the judge's right of examination. The Union of the Socialist Soviet Republics does not recognize the judge's right of examination either. In France the judge's right of examination is rejected by the courts, but is almost unanimously accepted by legal scholars. In the United States the judge's right of examination is generally recognized. The courts of the United States are required to compare the laws which have been issued with the Constitution, and to discover the true intentions of both. I believe that the international community of nations comes close to the federal system of the United States, and that therefore the International Military Tribunal is justified in examining the relationship of Article 9 of the Charter to the generally recognized rules of international law and also the laws of individual nations which, according to the statements of Justice Jackson, are likewise to form the legal foundation for the decision. Concerning Article 9 of the Charter, it must be added that it is a precept unknown to the previous laws. It can obviously be presumed, and undoubtedly needs no further explanation, that the nations which promulgated the Charter wanted to develop further the basic concepts of prevailing international law and bring it into legal form, and that in doing so they certainly had no intention of placing themselves hi opposition to the rules of international law. All written law, however, requires careful and scholarly examination and revision, to allow a reasonable application in practice to become possible. Only in this way will the courts be placed in a position to reach verdicts which are really in accordance with the facts.
DR. GAWLIK: The International Military Tribunal, therefore, on the basis of the judge's right of examination to which it is entitled, will have to examine the relationship of Article 9 of the Charter to the general basic legal principles of international law and the national laws of civilized nations. In this connection we have to start from the legal significance of the assertion, permissible according to Article 9 of the Charter, that an organization can be criminal. Article 9 varies basically from the corporate penal law as introduced, for example, into English law by Section 2 of the Interpretation Act of 1889. Punishment according to corporate penal law is directed at the organization. According to Article 9, the sentence can no longer affect the organizations, because they have been dissolved and no longer exist. The sentence is directed against the individual members, because the verdict of the Court is the basis for the subsequent proceedings according to Law Number 10. Two other important differences , must be mentioned: (1) According to corporate penal law, especially English corp6rate penal law, no imprisonment sentence is permitted. Article 9 is, nevertheless, intended as a basis for imprisonment sentences and even death sentences, as provided in Law Number 10. (2) According to English corporate penal law, no crimes and offenses can be prosecuted. If we examine English jurisdiction, we find that corporations have been condemned only on account of transgressions, especially on account of neglect of public obligations, such as failure to repair streets or bridges although such an obligation existed, blocking of a street by a railway company, or for publishing a lampoon. Article 9, on the other hand, deals with major crimes. Article 9 of the Charter does not accordingly amount to the introduction of corporate penal law into international criminal law. 26 Aug.
DR. GAWLIK: 4 A number of foreign laws have been quoted by the Prosecution according to which it should be permissible to declare an organization criminal: from American law, the Law of 28 June 1940 and the "California Act"; from English law, the "British India Act Number 30" of 14 November 1936; from French law, the Law o 18 December 1893, Section 265 of the French Penal Law Code Section 1 of the Law of 26 August 1944; and two legal decisions from Russian law.
THE PRESIDENT: Dr. Gawlik, I believe you are reading too rapidly.
DR. GAWLIK: The following German laws were also cited: (1) Articles 128 and 129 of the German Criminal Code of 1871, (2) The Law of 22 March 1921, (3) The Law of 21 July 1922. In this connection it should be noted that according to all these laws only individual persons may be prosecuted, and that in the proceedings against such prosecuted individuals it may be established that the organization has a criminal character, without this having a legal effect upon the non-prosecuted members. It may thereby be established in proceedings against some members of the organization that the organization pursues aims contrary to law, while in subsequent proceedings against other members this may be denied. Non-applicability of sentence against members who are not accused is however the decisive factor which distinguishes these laws from Article 9 of the Charter. The decision according to Article 9 of the Charter is, in contrast to the laws cited by the Prosecution, binding in the proceedings against the individual members before military tribunals, and indeed the sentencing of the organizations through the International Military Tribunal contains not only the effective establishment of the objective facts in the case, but furthermore an effective establishment of guilt for all the members, including consciousness of illegality, that is to say, a legal effect of hitherto unique significance in penal law. Thus a verdict based on Article 9 does not amount to a further development of corporate law, nor to the sentencing of individual persons because of the membership in a criminal community of persons, but to a conviction of the collective members of the organizations, because the essential facts, which shall form the basis for later judgments in subsequent proceedings according to Law Number 10, have been effectively established for the collective members. In subsequent proceedings the sole question of membership must be examined. In other words: we are here concerned with the collective judgment of all members of the organization.
DR. GAWLIK: What is the attitude of international law scholars toward the question of collective conviction? The majority of the American, English,, and French international law scholars reject collective conviction as "arbitrary and contrary to the elementary principles of justice" (Garner in International Law and the World War, Volume 1, Page -154). The well-known authority on international law, Garner, rightly states that collective condemnation, even if it is applied in the mildest form, necessarily includes the punishment of innocent persons,. Garner goes on to explain that for that reason a collective conviction should never be employed as long as other just measures fulfill the same purpose. The French legal scholars Bonfils and de Martons have condemned the basic principle of collective punishment in detailed dissertations, expressing the hope that collective conviction would disappear altogether. These statements should be fully concurred in. In the proceedings against the organizations past crimes are to be atoned for. In order to achieve this aim, however, the indirect way of convicting the organizations is not necessary. That aim can be achieved by instituting proceedings against individual persons who participated in these crimes, as has been done in a large number of cases. On the basis of the general basic legal principles of international law and the national laws of civilized states, therefore, use should be made, of the optional rule of Article 9, by refraining from declaring the accused organizations to be criminal. The persons responsible for the crimes can be punished in individual proceedings. There now arises the question whether it is at all possible in this Trial to establish all the required facts. To do so would appear impossible. Even to furnish proof that all members of the SD were informed of certain criminal goals would appear impossible. Guilt can always be established for the individual only. All guilt is bound to a person.
DR. GAWLIK: If many persons participate in some offense or crime, the judge must examine the entire group of persons involved singly, in order to determine guilt, innocence, or complicity in a concrete and well-defined manner. It seems entirely impossible, however, to determine whether all members were cognizant of the illegality and unrighteousness of the goals and tasks. In this connection we must also examine what was to be the standard for members of the SD in determining whether the goals or means were illegitimate or unrighteous. According to the German law in force while the organization was in existence these goals and means were permitted, as I shall show in the section dealing with facts. It may be conceded that the German legal measures conflicted in part with the provisions of international law, and that therefore goals and methods-while not illegal or wrong according to the law of the German State-can nevertheless be considered illegitimate and unrighteous according to the concepts of international law. But this is not the decisive point. What does count is whether the members, that is, all the members, recognized the illegality and unrighteousness of goals and methods which were legitimate according to German laws. The well-known teacher of international law, Oppenheim, has stated that the law cannot demand that an individual be punished for a deed which he was forced to commit in virtue of the law. If the best-known authorities on international law cannot agree as to what is right and wrong, can one demand from ordinary members of the organizations that they recognize it? The capital crimes which were discussed during the Trial, for instance,. the extermination of the Jews, and the inhuman treatment in the concentration camps, require no discussion as to right or wrong. The organizations, however, are charged with a great number of punishable offenses, and the question as to whether primarily the perpetrators, and furthermore all members, knew of the injustice and the illegality, cannot lightly be answered in the affirmative.
DR. GAWLIK: Particularly where acts and deeds were committed during the war it is very difficult to decide whether they were recognized as illegal and unjust. In times of peace- everybody knows that he must not kill, and that another's property is inviolable. Such acts are, however, partly justifiable in wartime. The soldier can kill the enemy. The confiscation of foreign property is permitted under certain circumstances. The individual who commits the deed, together with all the members, therefore has consciousness of illegal acts committed during the war only as long as he is aware of the limitations which are set by law. A strict examination of these points in the case of the organization is particularly necessary, because their members were for the most part men who had no juridical knowledge, and to whom the limitations of international law are unknown. I believe that this is also the opinion of the Chief Prosecutor for the United States who explained in his opening speech of 20 November 1945 that a soldier assigned to an execution squad could not hold an investigation as to whether the execution was legally admissible. While examining the question concerning the knowledge of the members as to illegality and injustice, the mistake should not be made of assuming that the simple members of the organization had the same knowledge which we now have gained in this Trial on the basis of documents coming from secret archives. Particularly in the proceedings against the SD a great number of secret papers, documents, and regulations have been produced, which were only intended for the internal administration of individual offices. The content of these papers, therefore, testifies that they had not been brought to the knowledge of all members, but only to that of a small definite circle. In this connection I wish to refer for example to the well-known Document L-180, the Stahlecker report, dealing with the activity of Einsatzgruppe A.
DR. GAWLIK: It can, therefore, already be said that a great part of the evidence produced by the Prosecution does not suffice for the collective conviction of the members of the SD. The documents do not even prove that the offenders themselves were conscious of illegality, because, in order to establish this, one would have to be familiar, with the particular circumstances of the act. And it must still be proved that the members of the SD knew of these acts and recognized that the acts were illegal, or at least wrong. I do not consider it necessary to discuss this question in the second part of my statement with regard to each act with which the SD had been charged; in my opinion it is sufficient that I have described the problem in general, and I will leave the examination in individual cases to the Tribunal. In each individual case, however, with which the SD is charged, and with each document submitted against the SD, the Tribunal ...
THE PRESIDENT: Would that be a convenient point to break off? [The Tribunal adjourned until 27 August 1946 at 1000 hours.]
DR. HANS LATERNSER (Counsel for the General Staff and OKW): Mr. President, I should like to take 2 minutes of the Tribunal's time. Yesterday after the conclusion of the interrogation of the witness Schreiber I received a written report to the effect that, to begin with, research work, as far as bacteriology was concerned, was expressly ordered to be limited to defense, and secondly, that a suggestion of the Army Medical Inspectorate in the autumn of 1943, that all means for an attack should be exhausted, was strongly objected to by the OKW and particularly by Field Marshal Keitel, who pointed out that this was prohibited, and would in no way be considered. This material I gathered from a letter which was put on my desk yesterday, a letter which I read yesterday evening for the first time. These two points which I have just quoted as proof can be testified to by Colonel Buerker of the General Staff, who is at present interned in the camp at Dachau. I propose that we interrogate this witness and confront him with the witness Schreiber. I assume that this officer is the same colonel who presided over the secret session mentioned by the witness Schreiber. The witness is at Dachau. He could appear before this court tomorrow. My interrogation would take, at the most, 20 minutes. I consider the bringing of this proof to be absolutely essential in the interests of truth. I have submitted my application to the Tribunal in writing.