dtufail/nuremberg-trials-corpus huggingface dataset:
DR. GAWLIK: We are at the dawn of this era in the history of peoples, an era which is the end of belligerent struggles, and would thus fulfill the deep wish of all the peoples. The International Military Tribunal could fulfill this task in the history of the world if by its decision it were to indicate that it intends to be the Court above all nations, which is the aim of politicians and of representatives of legal science. The collective condemnation of the members of the organizations, however, is not the way to fulfill this aim because this would punish the innocent as well. This Tribunal can only be built up on the principle: no punishment without the establishment of the guilt of the individual.
THE PRESIDENT: I do not know that the Tribunal has laid down any exact order, and I am not sure how far the translations of the various speeches have now gone, but perhaps counsel for the organizations know how far their speeches have been translated and therefore which it is most convenient to take now. Is it you, Dr. Laternser?
DR. LATERNSER: Yes, Mr. President.
THE PRESIDENT: We will take the High Command now, then.
DR. LATERNSER: So far as I know, the English translation of my final plea is completed. The French translation, apparently, is mostly completed; I have just seen one copy of it here and the Russian translation -- I do not know about that.
THE PRESIDENT: Very well. Yes, Dr. Laternser.
DR. LATERNSER: My Lord, Gentlemen of the Tribunal: It has happened more than once in the history of nations that After a war the military leaders of the defeated party were brought to trial. If the defeated war leaders or generals could not be reproached with ineptitude or negligence of their military duties, they were suspected of treason, of pursuing political aims, or they were accused of infringing the rules of warfare or the limitations of their military powers. There is one feature, however, which must be noted: as a rule, trials were conducted and verdicts rendered by their own state, and not by the enemy victors. To find examples for the latter case, one must go back into history by more than 2,000 years. The Romans strangled their enemy Jugurtha in jail, and persecuted Hannibal with their vengeance until they were able to force the cup of poison into his hands at the court of his host. In more recent history, there is the sole example of Napoleon I, who was banished by the victorious powers to St. Helena, where he died; but he was not taken to account by the victors because he had served his country as a French general, but because he was the Emperor of the French, and consequently the political head of his country. Hitler, who was the head of the German Reich, and the Supreme Commander of the Armed Forces, has eluded judicial responsibility by his death. Since he can no longer be dealt with, the Prosecution have taken the highest military commanders instead of the Supreme Commander and head of the State, made them summarily also political leaders, and are attempting in this way to render them responsible. This method is indeed unique and without precedent in the history of nations, and may well be contemplated with peculiar feelings by all soldiers of the world.
DR. LATERNSER: If one thing stands out clearly from the collection of evidence--and I shall have to deal with this in detail later on--it is the fact that the German military leaders did not dominate their country and did not drive it into the war, that they were not politicians, but exclusively, and perhaps even too exclusively, soldiers--which is the tragic part. Had they been politicians, Germany would not have fallen into this abyss. If we keep this clearly in our minds, it is obvious that these men are in fact facing trial before this Court only, because they served their country as soldiers. If the Prosecutor, Colonel Taylor, argues that Hitler could not have waged his wars without the assistance of the Armed Forces, that argument cannot be invalidated. Nobody has ever been able to wage a war without soldiers. However, what Carlyle says is true for the German military leaders as for all soldiers: "If a man becomes a soldier, his soul and his body thereby become the property of his commanding officer. He is not allowed to decide for himself whether the cause for which he fights is good or bad. His enemies are selected for him, and not by him. It is his duty to obey and to ask no questions." If the German military leaders are today indicted before this Court as an alleged "criminal organization," this indictment does not only apply to them, but is in fact directed--however strongly it may be desired to deny this publicly--at the soldiers in general, or at least at the military leaders as a class. By indicting the military leader--who, obeying the orders of his government, has fulfilled his military duties--because the Prosecution declares the action of his government to be illegal and represents him as a partner to such action of the government, the Prosecution places upon him the obligation to examine the legality of his country's policy, and raises him to the position of a judge called upon to give a verdict on the policy of his state. It cannot be my task to present the consequences of such a mental revolution for the soldiers of the world.
DR. LATERNSER: I can only ask the Tribunal to consider, with particular care and in full consciousness of its peculiar responsibility, these special circumstances when it applies the principles of the Charter to the special position which the soldier occupies both in fact and in law. Whenever a noble judge, after careful self-examination, comes to the conclusion that all sorts of reasons might tempt him to be prejudiced against a defendant, he will feel an obligation to weigh the evidence with special care, and to ask himself again and again whether he is guided by a genuine appreciation of the facts, or rather by a sentimental attitude. Now in this case, where one party is passing judgment on the other -- the Prosecution calls this modestly a flaw -- where the judges come exclusively from nations against whom the defendants fought as soldiers, in this case, I say, the judge is required to do something that is humanly almost impossible, namely to free himself, in the interests of the future of mankind, from the feelings engendered by the struggle which has just come to an end, and from the passions which were whipped up in its course. I conduct the defense in the expectation that, as regards the German military leaders whom I represent, this Tribunal will not exercise retaliation, but will in truth render justice in the highest meaning of the term. The whole Indictment is based on the attempt to include 129 high-ranking officers of the German Armed Forces, who occupied certain service positions in the military hierarchy, under the double designation "General Staff and OKW" in a "group" both in law and in fact. Before dealing with the legal aspects of the alleged "group character," I must present some observations on the term "General Staff" and "High Command of the Armed Forces" (OKW). There never existed during Hitler's time a General Staff for the whole Armed Forces, as the Prosecution obviously seems to think, along the lines of the "Great General Staff" of the former Imperial Army.
DR. LATERNSER: The Navy neither had an Admiral Staff nor Admiral Staff officers. The "Naval Operations Staff" set up in the autumn of 1938 was in no way similar to a General Staff. The Navy only participated in the functions of the Army, and of the Armed Forces in general, to the extent to which operational co-operation was required in individual cases. The Air Force had a General Staff of its own, consisting of the Chief of the General Staff and the General Staff officers. Its functions, however, were sharply distinguished from those of the General Staff of the Army and were limited to the Air Force's own sphere of activity. Co-operation between the two existed only in the case of joint operations. Nor was the General Staff of the Army itself, as the Prosecution seems to think, a central agency, but it consisted likewise merely of the Chief of the General Staff and of the General Staff officers. How little the position of this General Staff corresponds to the picture drawn by the Prosecution becomes apparent from the fact that its first Chief of the General Staff, General Beck, was only twice received by Hitler during his whole term of office from 1935 to 1938. The "General Staffs" of the Army and of the Air Force, which actually existed, are not in the least concerned with the Indictment, for the indicted 129 officers did not represent these General Staffs as an entity; out of the whole group, the sole members of these General Staffs were General Jodl, as Chief of the Armed Forces Operations Staff (Wehrmachtfuehrungsstab), the Deputy Chief of this staff, and the Chiefs of the General Staffs of the Army and the Air Force. All other generals were not General Staff officers, but troop commanders. A great many of them, namely, 49 out of the 129 officers, were not even members of the General Staff at an earlier date. If the Prosecution nevertheless give this group of persons the name of "General Staff," then this amounts to the same thing as if in the Roman Catholic Church one were to indict the Order of the Jesuits while really meaning the Cardinals.
DR. LATERNSER: The term "General Staff," therefore, does not cover the 129 indicted officers, but all General Staff officers, who are not in the least concerned with the Indictment. It is misleading and arbitrary. A verdict based on the designation "General Staff" would be directed against an institution the members of which are not indicted. The "High Command of the Armed Forces" (OKW) had even less the importance of an independent and central leading agency. The proceedings before this Court have clearly shown that this was only Hitler's military operations staff, and that it had no independent powers of its own to give orders. Only four out of the 129 persons ever belonged to the High Command of the Armed Forces. None of the others are covered by this designation. The double designation "General Staff and OKW" does not improve matters either. What is here called "General Staff and OKW" actually represents all the officers who occupied the highest positions in the course of this war. They were nothing but the heads of the military hierarchy, sharply divided among themselves, according to the three service branches. The only link between these high-ranking officers was their relation within the military hierarchy, their common professional ethics, and the spirit of comradeship, as is the case in all armies. The term "General Staff and OKW" is therefore an accumulation of wrong designations, arbitrarily selected in order to pretend that there existed a combination of something that was never combined, and is not even capable of being combined. As regards the 129 officers, neither the name "General Staff" nor the designation "OKW," nor the combination of these two designations "General Staff and OKW," produces a definition covering the functions or the persons concerned. The erroneous designation in itself might perhaps be no obstacle to a condemnation, if it could be replaced by a more fitting name.
DR. LATERNSER: The term often used by the Prosecution, "highest military leaders," or the designation "holders of the highest ranks in the German Armed Forces," would substantially cover the total number of the indicted officers more adequately than the erroneous term "General Staff and OKW." Both designations, however, would only be a loose definition and constitute a clear indication of the fact that there existed a multiplicity of persons, but could never be considered as proof of the existence of any kind of combination of these persons. There are no other terms possessing the value of proof; an the contrary, the very fact that one must search and search again even to find a term and that one still only finds an expression to cover 129 individual persons but that no organized combination can be shown, forces us to conclude that a legal or factual setup, call it what one will, never existed. Although these wrong designations and the impossibility of finding a correct term constitute in themselves already strong arguments against the assumption of a "group or organization," it is still necessary to deal with the legal conditions which must be fulfilled in order to be able to consider the indicted 129 officers at all as a "group" or "organization," although it might be nameless. Since the Charter does not define the terms "group" and "organization," it is necessary for me to say a word or two on the definition of these terms. In the first place, there is the question as to whether the term "group" is something different from the term "organization," or whether both terms are identical. As the Charter uses both terms side by side, even in the same sentence, it must be assumed that these two designations were deliberately chosen in order to emphasize at least a difference in fact.
DR. LATERNSER: Article 9 of the Charter gives rise to justified doubts as to whether it was actually intended to characterize two different phenomena, because under this Article the Tribunal is only authorized to declare the groups and organizations to be "criminal organizations." Therefore, the Tribunal cannot declare a "group" to be a "criminal organization" if it does not possess the corresponding characteristics, that is to say, if it is not itself also an organization. In this case, the quality of group would be legally irrelevant as far as Article 9 is concerned; an unorganized group could not be declared to be criminal. Nevertheless, the question of the "formation of a group" must be re-examined. As regards the definition, it must be based, according to the American Chief Prosecutor, on the common usage of the language. That means: The main characteristic of the existence of a "group" of people is the local co-existence of a multiplicity of persons. One speaks of a "group picture" if several persons are shown side by side, of a group of "curious onlookers" if a number of people are watching side by side the same event. From this it follows that another condition which must be fulfilled to constitute a "group" is the simultaneous co-existence of persons. As these two characteristics are lacking in the case of the group of high-ranking generals and admirals, as defined by the Prosecution -- these officers who belong to the most different agencies were never, neither before nor during the war, locally collected, nor simultaneously and jointly active-there can be no question of a "group" either in the linguistic or in the factual meaning of the word.
DR. LATERNSER: If this circle of officers cannot be considered as a "group" because the necessary conditions for the formation of the "group" are lacking, the question remains as to whether it was a "group similar to an organization," or even an "organization." If we take the common usage of the language again as our starting point, we find that the main characteristic of an organization is the fact of "its being organized." However, a combination of people is only "organized" if it possesses organs of its own, acting on behalf of the organization, while its creation, its powers, and its activities are based on some sort of a constitution. Furthermore this association -- irrespective of whether it be founded in law or may only have an existence based on sociological fact--must be able to develop through its own organs a will of its own. An organized association must be, as the prosecutor himself admits, an "entity." It is true that this "entity" need not find expression in so concrete a form that it appears as a subject in law, but it must at least outwardly show the characteristics just mentioned, and must constitute as to its substance a deliberately created voluntary association of several persons for the pursuit of common purposes. The main characteristic of an "organization," according to this definition, is the "inner purpose" of the association. The external form is not alone decisive for its existence; on the contrary, an associated multiplicity of persons does not become an "organization" unless its inner purpose is that of the pursuit of common aims. As regards the circle of officers concerned, the conditions are completely lacking both in law and in fact, which might justify the assumption that they constitute a "group similar to an organization," or an "organization." Even the most important condition, namely that of voluntary membership, is not fulfilled. These officers did not occupy their positions voluntarily, nor did they remain in these positions voluntarily.
DR. LATERNSER: But that the condition of voluntary membership must be fulfilled has already been indicated by the Tribunal in its definition of the points of proof considered relevant, and the Prosecution, too, have called these conditions essential. It is true that the military leaders voluntarily chose the military profession. They did join the Reichswehr voluntarily in 1920, and in so doing, had to commit themselves for 25 years under a contract. However, they were promoted to the posts which come under the Indictment exclusively by reason of their ability, and without any initiative of their own. By virtue of the commitment entered into they could not ask to be retired as long as they were capable of carrying out their duties, certainly not during the war when resignation was explicitly prohibited to them. These events and facts require no proof, as they are the same or similar in all the armies in the world. They are based upon the military power to give orders on the one hand, and the military obligation to obey on the other. Thus it is proved that the "General Staff and OKW" do not in any way constitute an association of persons based upon voluntary membership. But it also cannot be assumed that we are here concerned with an "organization" because the further condition, namely, the consciousness of these officers that they had joined an association at the moment of their appointment, was lacking. Any citizen who voluntarily joins an organization knows, at least, that this organization exists and that he is joining it. But these officers were assigned without being consulted to the posts which only now are arbitrarily designated as a group or organization by the Prosecution. How could they, in these circumstances, have been aware, at the time of their appointment to the various service positions, that this appointment was equivalent to acquiring membership in any kind of association?
DR. LATERNSER: The argument of the Prosecution that at an earlier date a similar association of General Staff officers existed in what was called the "Schlieffen Society," is irrelevant in connection with the appreciation of the legal aspect with which we are here concerned. The "Schlieffen Society," which only met once a year for a lecture and a report, was exclusively concerned with cultivating the spirit of comradeship between the former General Staff officers and those on active service. There was not the slightest reason for the German and Austrian officers on active service, who originated from the three service branches, to set up a similar association during the war. The foundation of a political community was even more out of the question in view of the traditionally unpolitical attitude of the whole German officer corps. The idea that a criminal purpose might have caused an association to form, as the Prosecution would like us to believe, is quite absurd. If, therefore, these officers neither took up their posts voluntarily nor had the consciousness of joining an association, or of assembling in an organization, the sole fact that they occupied the posts covered by the Indictment cannot, in itself, prove that we are concerned with an "organization." There are also the following facts which are opposed to a deliberate association and the existence of an organization. A large number of the officers concerned had never met personally at all. Only some of these officers have ever had contact with each other in connection with their official duties. All inner homogeneity was lacking in this circle of high-ranking officers, who are alleged to be so unanimous in their opinions. This Trial has more than anything else before brought out very clearly the divergencies of opinion and inner oppositions existing among these high-ranking military leaders.
THE PRESIDENT: We will break off there for a recess. [ A recess was taken until 1400 hours .] Afternoon Session
DR. LATERNSER: The absurdity of this "group experiment," however, is best illustrated by the inclusion of Himmler in the circle of these Army officers. It is a well-known fact that Himmler was the deadly enemy of the Army, and. that the leaders of the Armed Forces and those of the Waffen-SS had little association with each other except that occasioned by purely military operations at the front line. It is precisely the inclusion of Himmler and of some of the leaders of the Waffen-SS which constitutes a convincing proof against the existence of this really impossible institution. Nor does the time element permit the assumption that we are concerned with an "organization." The military leaders were no all at their service posts simultaneously, but in office at such widely separated periods that only a fraction of them could have been members at the same time. This is shown most clearly by the graph submitted to the Tribunal. According to these graphs there were only seven generals in 1938, only 22 generals on 7 September 1939, only 31 generals on 22 June 1941, and only 52 generals in November 1944, that is to say, much less than half of the indicted officer were in, the positions covered by the Indictment. There existed no uniform will on the part of all these 12 officers. Every one of them, it is true, was subjected to one single will above his own, but only in a military respect, not as regard an existing organized association. How could these officers at any time appoint organs of their own for the expression of their will? The constant change in the positions of those concerned would have excluded any such possibility. Only nine generals and admirals occupied positions for the entire duration of the war which would allow them to be included among the so-called "group." On February 1938 only six generals held such positions; 21 generals held positions coming under the so-called "group" for periods of only 2 to 2 1/2 years; 61 officers are counted as belonging to the "group" although they did not hold such positions for even a year.