dtufail/nuremberg-trials-corpus huggingface dataset:
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): This means that the procedure for the determination of guilt now advocated must be dealt with as a procedure against the individual members, not against what is abstractly termed an organization. This recognition gives rise to the difficulty of the present proceedings which, according to the statement made by the Prosecution, are expected to facilitate the procedure of the subsequent trials; but according to the generally adopted viewpoint of the individual guilt of the perpetrator, this actually means the shifting of the determination to another court. It is true that this Court has an advantage arising from the fact that, because of its connection with the proceedings against the 21 major defendants, it can with greater ease and with more uniformity form an idea of the actual basic questions. To shift basic decisions to a court which of necessity must take a global view of all the historical events is in itself a laudable thought, but one should not ignore the limits of what is possible in practice. If the Court had merely been given the task of determining historical events and of judging whether a group of members of the organizations indicted participated in them, this task could be solved with comparative ease. In this case, however, the Court is given the task of making a declaration on the total aims and the total results of the activities of an organization, a declaration which in the light of the foregoing must take into consideration the knowledge, will, and action of each individual member of the organization. This gives rise to the difficulty of finding a basis for a judgment which is in accordance with the wording of the Indictment. Another general legal viewpoint cannot be omitted in order to arrive at the definition of the concept of "criminal organization." By the pronouncement of proscription, already inherent in the verdict, and by the incidental determination, which is to be valid for the subsequent proceedings, the proceedings affect each member of the organization.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): Because of his membership he is to be outlawed and punished. The law which retroactively declares punishable the membership in the organizations under discussion is undoubtedly a new law. The legal aspect of the retroactive law has already been dealt with in the proceedings against the 21 individual defendants. The Prosecution at that time declared that in, applying a retroactive law there was justification for including actions which the perpetrator at the time of their commission knew to constitute an infraction of the general moral and ethical laws, or universal laws. However, the case is different when it comes to the indictment of the organizations. The judgment is not now concerned with the fact that an individual perpetrator committed a criminal act regardless of his awareness of its general condemnation, although at the time of commission a law against it did not exist. The point now to be decided is whether a person incriminates himself by being a member of an organization. Assuming that the organization in question actually had and carried out aims which were contrary to the general law of ethics or to universal laws, this does not of itself establish that the member of the organization was aware of his guilt by becoming a member or continuing to be a member. An organization ran be criminal, or its activities can be criminal, but it does not necessarily follow that the individual member who joins it or remains in it, even though he may have knowledge thereof, must under all circumstances take upon himself the guilt of those who set the criminal aims and were active in carrying them out. This becomes particularly evident in the case of an organization whose purpose was originally legal and which subsequently set for itself and pursued a goal partly or entirely illegal. A member who still remains in it may do so from various motives, not necessarily immoral ones.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): It is quite conceivable that such a member resolves to remain in the organization because he believes that in so, doing he may be able to influence the execution of the illegal aims, that is, either to prevent them totally or partly, or at least to attenuate them. In regard to the criminal deed with which he is charged, arising from the mere fact of membership in the organization, such a member is not aware of a criminal or even a moral wrong. He can judge his membership in the organization merely in the light of the law which was in force at the time when his action was committed. This can only be the law of his own country. A member can be incriminated only on the basis of what the laws and jurisdiction of his country have established in terms of criminal responsibility arising from membership in organizations. I therefore must confine my discussion to that which so far was known abstractly to a German national about the law and jurisdiction in connection with that question. There are very few German penal laws which deal with criminal membership in an organization. In his speech of 28 February 1946 Mr. Justice Jackson discussed these laws. All these laws govern only individual proceedings against a member. The established opinion of German jurisprudence and adjudication on Articles 128 and 129 of the Penal Code, and other similar provisions of law dealing with the question of membership, is that formal membership is not sufficient to establish the facts involved in a case of criminal law, but rather continued activity to achieve the illegitimate aims of the organization. The member must prove his membership in the organization by his deed, and he must consciously further the illegitimate aims by his actions. It is not deemed sufficient that the member, having knowledge of the illegitimate aims of the organization, should outwardly proclaim his membership, thereby expressing his approval of the aims endorsed by his membership, but he must participate in the achievement of the aims by his own activity in the organization.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): Therefore, according to German law, it is immaterial whether the outward appearance of his membership can be construed to mean that he approves of the aims of the organization and thus possibly enhances in any way the reputation of the organization before the world. This eliminates all cases where proof of the knowledge of criminal aims or of active participation, by the member in the achievement of these aims is not forthcoming; also it particularly eliminates those cases where the member disapproved of the aims and did everything in his power to prevent the achievement of the aims, or at least to mitigate them. A member of an association could therefore, if he had moral unobjectionable reasons for joining or remaining in an association, rely on this abstract German legal principle. Therefore a retroactive law which makes the simple fact of membership punishable cannot possibly furnish the justification sought by the Prosecution in the case of individual defendants. Here there is no infraction of a general legal disposition or general moral principles which originally must necessarily make him conscious of the illegality of his conduct. Such a violation is, provided the reasons for becoming or remaining a member are not morally objectionable, not established. In order to establish the concept of "criminal organization!' underlying its judgment, the Court must take into consideration the knowledge and activity of the individual member. It must be established that through his membership in the organization the member approved of its criminal aims, and actually advanced them by his own activity. In defining the criminal concept it will have to be borne in mind that all crimes mentioned in, Article 6 of the Charter concern unlawful warfare, and that especially the crimes against humanity, Article 6 (c), must be connected with the planning or execution of such a war.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): In summarizing I should therefore like to establish the following: An organization can be declared criminal only if all the individual members conceived a common plan for an unlawful war, or if they joined in a war which gave rise to the crimes willed by the planners, as stated in the Charter. The individual members not only must have joined the organization with such knowledge, but they also must have consciously advanced these aims by their activity. I do not deny that the Tribunal faces a very difficult task in connection with this legal argumentation. In my deduction I started out from the Prosecution's concept that the proposed declaration would also comprise the question of guilt of the individual member, and that in subsequent proceedings such a member is reduced merely to the objections which refer to the fact of the membership itself. An absolutely necessary consequence of this concept is that the Tribunal will have to apply its decision to the sum total of cases of individual members, in order to prevent the decision issued from embracing also the verdict of guilty against all individual members without an individual examination of the, question of guilt having been carried through for each individual, whereby the innocent in fact would be declared accomplices indiscriminately and without having been heard. The only means to avoid this would be for a modified verdict merely to establish objective historic events without thereby at the same time taking a decision as to the individual member and his subjective guilt. It is quite clear to me that such a modification would give rise to legal scruples with regard to the Law of the Control Council. As it is, we can approve of such a solution only if the Court can eliminate these scruples and actually guarantee thereby that in later proceedings the case of each individual member be examined to the extent which I have mentioned.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): If the organization in the last analysis is conceived as representing the bulk of the individual members, this will lead to the conclusion that the shaping of its purpose presupposes a general expression of the will of all members. Without the totality of the members, a change in the purpose of an existing organization cannot be realized. All members must at least know the new aim and must be determined to sponsor it. Otherwise, if this new aim be a criminal one, the previous legal organization would be split in two, one with legal tendencies and another with criminal ones. It would then be impossible to declare the entire organization to be a criminal one. Furthermore, the question is to be examined as to whether it is sufficient, in establishing the criminal character of an organization, that a further criminal purpose be added to a hitherto legal one. Here also my previous conclusion should be considered that the definition "criminal" must comprise the total aim of the organization as a body. Should the criminal purpose be only a part of the aim and sufficient to allow the whole of the organization to be declared a criminal one, the legal aim would be simultaneously discredited by this general definition. Would not then even those acts which were committed for the purpose of the fulfillment of the legal aims, be illegal ones as acts of an entirely criminal association? In respect to the case of the Reich Cabinet it seems impossible to me to declare this institution as such to be definitely criminal, whereas at the same time there can be no doubt that at least the legal acts were fully legal in their effect. The legislation of the Reich Cabinet since 30 January 1933, which comprises all state administrations, has still today its predominant legal force. It would be an absurdity to consider these legislative acts as valid, if the aim of the Cabinet was unrestrictedly criminal.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): Another presupposition for the declaration proposed by the Prosecution, which we must consider, is the freedom to join the organization, freedom which must not only be present at the joining of the organization, but also particularly at the changing of the original aim When remaining in the organization. It must therefore be actually examined whether the right to remain in the Cabinet voluntarily was always conceded, or whether the legal and actual conditions abolished that right, at least from a certain date onwards. Finally the question must be examined as to whether there existed throughout a cohesive connection between the persons who are indicted as members of the Reich Cabinet. Only such a connection would justify any acts charged to the Reich Cabinet being considered as having been committed by the Cabinet as a whole. This problem is already evident, because the Prosecution, who for their part also generally consider a cohesive co-operation of the members of the organization to be necessary, have legally established the unity of persons which they designate as "Reichsregierung" by the criterion of the right to participate in the meetings of the Cabinet. As these Cabinet sessions were discontinued in the course of time, it remains to be examined whether afterwards, in their stead, there was any other tie which bound the members in the same way in the performance of the activity under consideration by the Prosecution. Starting from these general, considerations dealing with the organizational problem as such, and the special problem of the case of the Reich Cabinet, the result of the evidence must now be examined in order to establish whether the requirements for a sentence exist as argued. First, I wish to turn to the numerical limitation of the circle of persons indicted. The Prosecution start from the right to participate in the Cabinet sessions. They thereby suppose that the criminal activity assumed by them took place within the framework of the personal connection afforded by the sessions.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): They overlook, however, the fact that a number of persons mentioned in Appendices A and B of the trial brief were merely entitled to participate in those deliberations of the Cabinet sessions which concerned their own administrative sphere. The Prosecution obviously desire to stress the resolution of all the participants, particularly in matters of general politics, so that those members who were entitled to attend the consultations only occasionally and in part must, as a matter of course, be excepted from the organization in question. I therefore refer to Appendices A and B, where the Prosecution have stated the extent of the right of participation for each of the persons mentioned. With reference to Appendix B, I should like to state that the commanders-in-chief of the Wehrmacht branches, that is, Fritsch, Brauchitsch, Raeder, and Doenitz, were only entitled to participate in Cabinet meetings on the basis of the Fuehrer directive of 25 November 1938, that is to say, not generally. With reference to the legal point in the case of Keitel I refer to Dr. Nelte's final speech. Schirach also had the right to participate only when his sphere of activities was involved. In the case of Axmann this is shown correctly in Appendix B, but in the case of Schirach it has been overlooked. In this respect, therefore, we have to supplement the list in Appendix B with reference to Fritsch, Brauchitsch, Raeder, Doenitz, Keitel, and Schirach. In addition to the above conclusion, I believe that Reich Commissioner Gereke's right of participation was also restricted. Moreover, this case seems equally worthy of mention because Gereke resigned already in April 1933. In this connection those who, while they had the right of participation in the Cabinet sessions, had no voting right and were only present for information, should also be mentioned. In this category were the Chief of the Press, Dietrich, and State Minister Meissner. The question of the voluntary status of membership in the Reich Cabinet cannot be answered uniformly.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): In dealing with the question of voluntary entry into the Cabinet, those cases will particularly have to be considered, in which state secretaries who previously did not belong to the circle of persons included by the Prosecution were, through, the resignations of the ministers over them, immediately entrusted with the conduct of ministerial affairs and thus entitled to participation in the Cabinet sessions. To a certain extent their entry into their new post must be considered as part of their civil service career. The question of a member's remaining in the Cabinet must be judged differently according to the time. Legally, the following must be borne in mind in this respect: According to Article 11 of the Reich Minister Act of 27 March 1930, the Reich Ministers could ask for their release at any time. An alteration of the legal position could already have occurred by virtue of the Ministers' Allegiance Act of 17 October 1934, which is Document Number 22. According to this, the ministers had to swear allegiance and obedience to Hitler. A letter of resignation could be construed as a breach of allegiance and obedience and therefore be considered legally inadmissible. The question can however really be left at that. The legal consequences deriving from the ministers' oath are in any case expressly and legally established by the German Civil Service Act of 26 January 1937 (2340-PS), which was put into effect on 1 July 1937. By this law the Reich Minister Act of 27 March 1930 was cancelled. Article 161 stipulated that the Reich Ministers could now be discharged by Hitler alone. Legally, therefore, it was no longer possible for a Cabinet member to resign after 1 July 1937. It will be objected that nevertheless cases occurred where Cabinet members obtained their release. The cases of Gereke, Hugenberg, Papen, Schmitt, and Eltz von Ruebenach are prior to this time and must therefore be excluded. In the subsequent period various Cabinet members endeavored to resign.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): They mostly failed, as we have heard on many occasions, during the hearings of the individual defendants. Many only succeeded in being discharged from their department while being provided with a new title or a new office, so that they again came within the category of persons implicated by the Prosecution. Darre was relieved of his official functions and even expelled, but could not obtain his official dismissal as minister. Schacht had for that reason been preparing to break with Hitler for a long time, which brought him into a concentration camp; State Minister Popitz was executed as a participant in the plot of 20 July 1944. Thus we see that in spite of the legal position, it was actually not possible for a member of the Cabinet to resign against Hitler's will. Even the Prosecution admit that, apart from the voluntary status of membership, a cohesive co-operation of the members must be established in order to consider the Reich Cabinet as an organization or group within the meaning of the Charter. They hold that this cohesive association can be seen in the Cabinet meetings and the circulating procedure. I shall show by the following that there was no such collective co-operation among the members of the Cabinet, and that as time went on there was even a definitive split in the Cabinet. The evidence shows that three interlocking factors brought about a split in any internal cohesion of the Cabinet. These three factors are as follows: (1) The development of Hitler's absolute domination, which increased until it became an absolute dictatorship; (2) The establishment of superior and subordinate offices among the Cabinet ministers originally possessing equal rights within the Cabinet, through the authority to give orders conferred on the plenipotentiaries, special delegates, et cetera ; (3) A carefully guarded secrecy which precluded the individual minister from gaining any knowledge outside his department, and thus made any super-departmental co-ordination impossible.
DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): In this connection it is necessary to consider historically the state of affairs as it developed, and to find the reasons. Until 1932 one might feel inclined to assume that the Reich Cabinets displayed a certain "cabinet solidarity." At that time Cabinet meetings were continuously taking place, during which all bills as well as differences of opinion on questions which affected the sphere of several ministers were submitted for consideration and decision. Resolutions were passed on the majority of votes. Even at that time and at that stage of practice and knowledge the idea of a collective responsibility of ministers was rejected. In the authoritative Manual of German Constitutional Law ( Handbuch des Deutschen Staatsrechts ) by Anschuetz and Thoma, the well-known lecturer on constitutional law, Baron Marshal von Bieberstein, wrote in 1930, Page 529; I quote: "General principles throw a most doubtful light upon the affirmation of collective responsibility for majority decisions because, especially in jurisprudence, one can only talk of responsibility in regard to rational beings. An established state practice in the sense of such an affirmation cannot be proved for the Reich; on the contrary, the competent ministers make themselves personally responsible ... Above all, German political practice does not know the principle of 'cabinet solidarity' as admitted abroad, especially in England, which involves a collective liability for all individual actions ..." This denial of a collective liability holds good not only for the responsibility of the ministers to the Reichstag, but also in the proceedings before the State Tribunal, before which the ministers could be indicted and sentenced for their activity, much in the same way as the English "impeachment." Moreover, at that time already a restriction was placed on the passing of resolutions by the Cabinet, and thus on the free decisions of the ministers, by the right of the Reich Chancellor to determine the policy for which he then bore' the sole responsibility.