dtufail/nuremberg-trials-corpus huggingface dataset:
DR. SERVATIUS: Where the other principal defendants are concerned, one Must examine whether they committed the acts with which they have been charged in their capacity as Political Leaders, or in another capacity. The Prosecution has recognized the legal significance of this distinction by referring in the summary of the trial brief only to those deeds of Rosenberg and Bormann- with which they are charged in their capacity as Political Leaders (Page 75 of the trial brief). One must not depart from this distinction. The ruling of Article 9 of the Charter is no purely formal prerequisite for the Trial. It is a material limitation of the extent of the criminal group. The group must not be formed arbitrarily and without limitation by the Prosecution; there must be some connection between it and the act of one of the principal defendants. This is only possible if one of the principal defendants acted within the Corps of Political Leaders. Nor does the connection exist where the effect of the action of one of the principal defendants fails to affect all levels of the Political Leadership Corps; this must be considered in passing judgment on the lower grades. The connection is also lacking in the case of those principal defendants whose connection with the Corps of Political Leaders was established only later, with the exception of Hess. In the case of Rosenberg, the actions with which he is charged were essentially in the State sector, where he was active as Reich Minister for the Occupied Eastern' Territories. The actions of Bormann as Chief of the Party Chancellery from,1941 on are primarily decisive for the judgment of the Political Leaders. As a result of the absence of this principal defendant, however, it is of doubtful wisdom to base the condemnation of the group on his deeds, since there was no close investigation of the occurrences.
DR. SERVATIUS: For the most important charges it would have to be cleared up whether Bormann acted as Chief of the Party Chancellery, or as Secretary of the Fuehrer outside of the Party machine, or whether he a7cted independently contrary to all instructions (Document 53). 1 It is noteworthy that Hess, Bormann's superior, is not included in the original trial brief, although until 1941 he was Deputy of the Fuehrer in the Party. Presumably, the Prosecution was at the time of the opinion that he could not be charged with any action in connection with the Corps of Political Leaders which would indicate a criminal character. This is a significant point of view for the judgment of the group as regards time. The actions of Gauleiter Sauckel and Streicher cannot be taken as a standard for the Political Leaders as a whole. As Gauleiter they could only act in their own districts. The actions with which they are charged in this Trial they undertook outside of their function as Political Leaders, namely, as Plenipotentiary General for the Allocation of Labor or as a newspaper publisher. I want to present two additional legal viewpoints which can be of significance for the judgment. One idea is the retroactiveness of the verdict. I do not want to attack it as being legally inadmissible, since the Charter has ordered it, but since the verdict is at the discretion of the Tribunal, the matter of fairness can be considered here. Retroactiveness: in an individual trial can be justified by the fact that the perpetrator was warned and had to realize the fact. It is different with the bulk of little Political Leaders, who are made responsible for a conspiracy only indirectly through their leaders. The second point of view is the lack of legal hearing. In these proceedings before the Tribunal the preliminary decision is reached, which is decisive for every member of -the organization. Therefore, everyone was given the right to request a legal hearing. Only comparatively few have made use of this right.
DR. SERVATIUS: One must assume that many have not been informed of their right or have had no opportunity to submit their applications to the Court. There are applications from only about one-third of the camps of the British and American Zones; from the French Zone, from only two camps; but particular reference should be made to some areas from which no applications at all have been received. There are no applications from Austria, and the camps there could not be visited. The permission of the military authorities was given, but the approval of the Control Council was not received. This is noteworthy since there are special circumstances in this case which might possibly exonerate the members; special treatment and judgment, especially in regard to time, is advisable. Nor are there any applications from the Soviet Zone, although the official announcement is said to have been made. I myself only recently had an opportunity to visit two camps. Those interned there declared that they knew nothing of their right to a hearing; not all wanted to submit applications. For these districts, therefore, the Defense was in a difficult position as regards evidence. For these zones a few Political Leaders were heard who could be reached in British or American camps. Although one obtains a certain picture in this way, the taking of evidence before the Commission has shown that there may be testimony of significance for the Defense. Thus a Kreisleiter of the West was able to testify that the construction of the West Wall had convinced people there of Hitler's defensive intentions. A Kreisleiter of the North referred to the Naval Treaty with Britain, which the coastal population particularly considered a sign of the will for peace. Other witnesses have brought forward noteworthy arguments from the Church membership of the Political Leaders in their district. The real significance of the limitation could be judged only after a hearing, so that a judgment on this subject is not yet admissible. The following question is also of considerable significance for the procedure.
DR. SERVATIUS: The Charter has guaranteed the opportunity of a hearing. Every provision of form has its deeper sense and its basic significance. Here legal hearing is held up as a democratic principle in contrast to rejected police methods. This principle was put forth jointly by the signatory powers and the Tribunal must see to it that it is observed. This is an unrenounceable objection which I hereby expressly assert.
THE PRESIDENT: Mr. Biddle would like to know exactly what you mean by those last two sentences.
DR. SERVATIUS: I did not hear what you said.
THE PRESIDENT: Mr. -Biddle would like to know what YOU mean by your last two sentences, "Here legal hearing is held up as a democratic principle in contrast to rejected police methods. This principle was put forth jointly by the signatory powers and the Tribunal must see to it that it is observed. This is an unrenounceable objection, which I hereby ' expressly assert." Does that mean anything?
DR. SERVATIUS: It means that I cannot forfeit the right to raise the objection that in entire territories hearings have not been made possible, that is, in Austria and the Soviet Zone. And it is an objection which I cannot renounce but which must officially be taken into consideration.
THE PRESIDENT: Go on.
DR. SERVAT1TJS: The observation regarding divergent practice in the interpretation of Article 9 of the Charter must be made from another point of view also. It has to do with the danger of divergent interpretation and, application of the Tribunal's verdict with regard to the organizations. Therefore, in addition to a specification of the group of persons affected by the verdict, a clarification of the elements of guilt to be proved should be laid down in the interest of subsequent separate trials. Also the degree of punishment is uncertain. The scope of the penalties fixed in Law Number 10 of the Control Council, which includes ' the death penalty, offers no legal protection if their interpretation is left to the free decision of the various national tribunals which may subsequently sit in judgment. The judgment of the Tribunal might cause new harm. Particularly in this regard the Tribunal must see to it that the goal which it seeks to attain will be attained. The punishment must not become a revenge. The measure of punishment must not be based on the theory that millions of victims necessarily imply the guilt of millions to be brought to punishment. If the basic aim of judgment is to deter, the following must be borne in mind: No one who appeared before this Tribunal has attempted to justify the crimes which are the subject matter of this Trial. All who appeared, here disassociated themselves from these crimes. No one has declared that the extermination of the Jews had been necessary, or that a war of aggression was a goal worth striving for, or that the persecution of the Church and the concentration camp atrocities could not have been dispensed with. Only if this had been the case would this be a trial involving an ideology which was to be eliminated. That is why we see here no typical advocate of this ideology to say "I have millions behind me," or, "I cannot do otherwise, so help me God!" The millions were set in motion by another goal, for which they fought. This goal was not the world of crime, but the shining radiance of Socialism.
DR. SERVAT1TJS: The masses believed that a miracle of progress would succeed the period of misery, and were strengthened in their belief. They are ready to believe once more. The foundation of this belief - is the justice of the verdict in the case of the organizations, by which the entire population will be affected. This verdict must inaugurate an era of new international law and punish those who are responsible for the war. It is only just that the old legal concept should disappear from the stage of world history, which punishes an entire people by means of peace treaties involving annexations and contributions without regard to guilt. Today we face the threat of twofold and threefold punishment, by the peace treaty, by Law Number 10 of the Control Council, and by the Law for Denazification. We are still in a state of war and this Trial has been called the continuation of the war effort. But there must be peace, and "Should war not end with war, whence then shall come the peace?'?
THE PRESIDENT: Dr. Servatius, the Tribunal observes with appreciation that you have kept within the limit of time which the Tribunal hoped would be kept to by all counsel on behalf of the organizations. You have made your speech within half a day, but some of the other speeches which have been deposited for translation appear to be very much longer than yours, and the Tribunal wishes me to point out to those counsel that they will have to make their speeches also within half a day. The Tribunal will now adjourn. [A recess was taken.]
THE PRESIDENT: We call on Dr. Merkel.
DR. MERKEL: Mr. President: May it please the Tribunal, in the proceedings against the individual defendants, the deeds of individuals were examined. During the proceedings against the organizations, the question we are concerned with is whether a new basic principle is to be introduced into the legal structure of this world. The trial of the Gestapo is given its significance by the conception  the Prosecution that the Gestapo had been the most important instrument of power of the Hitler regime. As I defend the Gestapo, it is with the knowledge that a terrible reputation is associated with that name, that it conjures up horror and fear, and that waves of hatred radiate from the very name. The words I am about to speak will be spoken without regard for the opinions of the day, because I hope to be able to present factual and legal evidence which will place this High Tribunal in a position: (1) To examine whether, by sentencing the organizations, a legal development will be introduced which will serve humanity; (2) To establish the truth, regarding the Gestapo; and by this (3) To save the innocent amongst the former members of the Gestapo from a tragic fate. The first two tasks necessitate the answering of a question which represents a preliminary problem connected with the problem of the Gestapo as a whole. No allegation made by the Prosecution has shaken me more than the assertion of the British Chief Prosecutor that the Germans, after 6 years of Nazi domination, by replacing the Christian ethical teachings by idolatry of the Fuehrer and the cult of blood, had become a depraved nation. If this judgment is true, then the fact of its existence, apart from the circumstances just mentioned, is due to yet another extraordinary factor-a factor of a character so unusual that history hardly knows it: The symptoms of the demon, the demon in Hitler, and the infiltration of the demon's spirit into his regime and into the institutions which he created and employed.
DR. MERKEL: How far Hitler was demonic has been illustrated by Goethe's words already quoted from Dichtung und Wahrheit by my colleague Dr. Dix: they (the demon-men) radiate an enormous force.... All ethical forces united cannot defeat them.... They attract the masses ... and it is from such sayings that the strange, yet dynamic phrase may have arisen: Nemo contra deum, nisi deus ipse." The effect of demonocracy, the wide world has become clear to you in some of the capes of the individual defendants. The case of the Gestapo will demonstrate to you how an institution of the State was repeatedly misused by the demonic leaders of that State. Here, during the discussion of this preliminary question, yet another interest arises, the interest of the legal significance of demonocracy, for this Trial. In order to satisfy that interest I shall give another short quotation from Goethe: "Demonocracy is a power which, though it does not oppose the moral world order, nullifies it." According to this verdict the crucial point is that two powers determine the history of this world, "the conflict of which," as Mr. Justice Jackson said hi agreement with Goethe, "forms much of the history of humanity: The moral world order and the demonic." The juridical value of this judgment for our set of circumstances becomes clear from the following considerations: The moral world order was represented by the traditional order. Opposed to this, Hitler represented the power which, while it did not oppose it, nevertheless rendered it ineffective. In this Trial the aim must be to exterminate the remains of this demonic power. Can this and should this be done in accordance with the traditional principle of the victorious moral world order, or should it be done by other methods? Here we have the first juridical alternative of this Trial clearly before us, deriving from the greatest of possible perspectives, that is, consideration of the differences between the moral world order and the demonic. Controversial points of view dominate the present attitude toward these matters.
DR. MERKEL: The Charter on the one hand has chosen the traditional specific principles of the moral world order. It wishes to see judgment passed against the representatives of demonocracy, the individual defendants and organizations, by means of an orderly trial, a proper indictment, with appointed defense counsel, and resulting in a sound verdict. On the other hand, the "law of the Charter" itself, according to the words of Mr. Jackson, is "a new law" with principles which contradict the age-old traditional legal conception. As examples I quote the assumption of collective guilt and the introduction of laws with retroactive effects. In this way it becomes apparent that the leading thoughts directing this Trial are in opposition to each other. It is our common task to recognize this fact and also, through joint efforts on the part of the Prosecution, the Defense, and the Tribunal, to arrive at a concordia discordantium, a balance of conflicting opinions. My leading argument as defense, counsel for the Gestapo will have to be devoted, therefore, to the question of how the rules of the Charter are to be understood, according to which the Tribunal can declare, from the trial of G15ring, Kaltenbrunner, or Frick, that the Gestapo was a criminal -organization. Once again I must come back to the principal consideration. If two powers of historic importance for this world decide the moral world order and the demonic, then, if this world is to be cleansed, moral order must be victorious. But is the moral world order empowered to conduct the fight against its opponent with exceptional rules which differ, themselves, from the basic principles of the moral order? For the sake of the purity of its character and of its victory, the moral world order must only light with the weapon of its own categorical imperative, without any compromise. Because it is thus that the opponents of Hitler fought during 6 years of war, starting with the principles of the Atlantic Charter.
DR. MERKEL: But is it right that they, the declared representatives of the moral order, should now, with the battle of arms at an end, conduct the final struggle against demonism, with such exceptional rules? Surely that is impossible! Would it not create the impression that the victorious powers, particularly in the realm of ethics, do not have sufficient confidence in their innermost essence? As a result, for coming generations this maxim would develop: "That which benefits the victor is right." The pitiless vae victis would have been enthroned, whereas the victors had especially emphasized that they were entering the lists for justice, and because of justice. With the word "Justice" the signatory powers have called the Tribunal into existence by stating in Article I of the Charter that "an International Military Tribunal shall be established for a just trial. . . They gave the word "Justice" emphasis by having Part IV of the Charter headed "Fair Trial for Defendants"; and then they took the precaution of specifying that the regulations contained in Articles 9 and 10 are such as may be applied. That the victors should wish to have organizations with such a reputation as the Gestapo declared criminal-who would not understand that? But they guarded against making Articles 9 and 10 compulsory regulations. In that way "Justice" became the first premise of the Tribunal.
DR. MERKEL: Within its limits, therefore, the regulations that may be applied under Articles 9 and 10 are to be handled as if the entire stipulation had the following wording: "If the Court considers it just, it may declare the organizations criminal." In this way the entire decision rests on the concept of "Justice." - "Justice" in its truest form is an attribute of God --- "God is just." This sentence has penetrated our consciousness in the sense that God will call to account only him who is really guilty according to the word of Josiah, "I have called you by name." This confirms the principle which should guide all the deliberations according to which the organizations and their members must be dealt with. In the main, two points are involved: The members of the organizations, who with their families make up at least 15 million people; then also we have to see that "this remarkable but terrible saying" does not prove true because of the judgment, "No one can do anything against the moral. order of the world except that moral order itself." From this, the following conclusion arises for my final plea: The question put by the Charter to the Prosecution, to the Defense and to the Tribunal, whether rules of exception are admissible, whether, above all, the organizations are to be considered collectively capable of guilt, whether laws with retroactive force may be applied-that question must be answered in the negative. The counterquestion as to whether the world in the future can, on the basis of the system of individuality, be protected from demonic catastrophes, and whether the Hitler catastrophe did not prove the opposite, I should like to answer to this effect: The protection of the world against such catastrophes is not a question of a system, but rather a question of determined men who rest secure in Me moral order of the world. The significance and the consequences of the demand voiced by the Prosecution to have the organizations declared criminal are of tremendous scope.
DR. MERKEL: That is reason enough for defense counsel to examine with the utmost conscientiousness and thoroughness, and from every point of view, whether the foundations are present which can carry an indictment of such proportions in terms of justice under the moral world order. First of all, I should like to establish with all emphasis the first and most important result of my examination: A group cannot be declared guilty. For criminal guilt means the embodiment of conditions which are punishable not only in an objective, but also in a subjective form. In other words, a crime can only be committed in terms of guilt, that is, only intentionally. According to natural concepts, we can speak of intent only in the case of an individual, but not in the case~ of a group, and if foreign laws are referred to in this connection, this, in the final analysis, amounts to confusing the coinciding will of numerous individual persons directed toward a fixed aim. However, the problem of collective guilt lies, in a sense, much deeper. The thought of rejecting collective guilt goes back to the most ancient times. It originated in the Old Testament, and through Hellenic culture and Christianity it spread over the entire world. In this way it has become the guiding legal principle of the entire moral order of the world. In Roman law this sentence was expressed clearly: Societas delinquere non potest. In modem times we have retained the thought of individual guilt. On 20 February 1946, the Pope said in his radio speech that it was a mistake to assert that one could treat a person as guilty and responsible merely because he had belonged to a certain organization, without taking the trouble to investigate in each case whether the person in question had made himself personally guilty through his actions or his failure to act. That was an encroachment on the rights of God. In the same sense the Hague Rules on Land Warfare of 1907 in Article 50 expressly prohibit the infliction of punitive fines because of the actions of individuals.
DR. MERKEL: for which the population cannot be considered co-responsible. Finally, the former State Secretary, K. H. Frank, was condemned to death and executed because he had, among other things, wiped out the village of Lidice because of the conduct of individual inhabitants of the village. That is to say, the fact that he had assumed the collective guilt of the village community and inflicted a collective punishment on the village was counted as a crime. Thus, in our case it cannot be proper to punish an organization as a whole, collectively, because of the crimes of individuals. With these brief references I believe I have made clear that the basis of the accusation against the organizations is not firmly established. I agree with the legal statements of Mr. Jackson only insofar as he concludes his legal observations with the statement that "it is completely intolerable from such thinking according to the letter of the law to deny personal immunity." The personal immunity of the individual members of an organization in connection w1th the punishable actions committed within the organization cannot be derived from the denial of collective guilt; rather can the culpability of the individual for the punishable actions committed by him be emphasized more strongly. The legal basis of the whole Trial against the individuals and organizations here accused is the Charter created by the United Nations. The Defense has already taken the opportunity to' express its misgivings about the Charter, to which I make reference. I want to bring out only one point of view once more. If, in case an organization is declared criminal, the former members are to be punished because of their mere membership, then they must do penance for something which was legally permitted at the time of the action. Thus the Charter establishes norms with retroactive force. The legal principle, however, which prohibits laws with retroactive force, is firmly established in the law of all civilized states.