dtufail/nuremberg-trials-corpus huggingface dataset:
DR. KUBUSCHOK: I am of the opinion that the guilty ones, regardless of their number, should be brought to punishment. Despite all considerations of expediency, the issue should not be that along with the guilty ones an enormous number of innocent persons also be punished. Therefore, to come to the core of the question, this is to be regarded as relevant. The relevancy and admissibility of evidence depends on a definition of the criminal organization and of its criminal character. On the basis of my definition I contend that the following points are relevant: (a) That the organizations, according to their constitution or statutes, did not have a criminal composition and did not pursue any criminal aims in the sense of Article 6 of the Charter. (b) That within the organization, or in connection with it, crimes in the sense of Article 6 were not, or at least not continuously, committed during a certain period of time. (c) That a certain number of members had no knowledge of any possible criminal constitution or criminal purpose, or the continuous commission of crimes according to Article 6, and that they also did not approve of these facts. (d) That a certain number of members or certain closed independent groups joined these organizations under compulsion, or pressure, or as the result of deception, or by order from higher authorities. (e) That a certain number of members without any action on their part became members of these organizations through the bestowal of honorary membership. Since I know that the questions to be decided represent a terra nova in the field of criminal law, I believe that in the course of the presentation of evidence we shall receive many other suggestions. Therefore it will be expedient if the Tribunal at the present stage of the Trial do not bind and limit themselves by a final definition. I ask rather that evidence be admitted to the greatest extent.
DR. KUBUSCHOK: In conclusion I come to the question of how the presentation of evidence can be carried out in practice and how the legal hearing of the member can be made possible according to Article 9, Paragraph 2, of the Charter. The principles valid in criminal procedure in all countries allow every defendant before the court certain rights. The most important principles are the principle of direct oral proceedings and the right to defense and to a legal hearing. Since, according to my statements, the real defendants are the members of the organizations, these rights must be accorded to every member of the organization. In spite of this basic point of view, which will be discussed in still greater detail in our final pleadings, and with all legal reservations, the Defense do not overlook the fact that for all practical purposes that is impossible within the framework of this Trial. A solution must be found, since the Prosecution have lodged the Indictment of the organizations on the basis of the Charter in its present form. This leads to the necessity of carrying out the proceedings, whereby the aim of all people taking part in the Trial can be only that of finding the best possible solution by getting as close as possible to the universal and, in our opinion, inviolable points of view. In this connection the Defense in the same way as the Prosecution are gladly aware of their duty to work constructively towards a decision by the Tribunal. If, now, the enormous number of people who are affected by the Indictment gives rise to tremendous difficulties which prevent a reasonable solution of this problem, an adequate basis for judgment of the aims of the organizations, as well as of the actions and the subjective attitude of the individual member of the organization, must nevertheless be found. In order to make any headway in these proceedings, an attempt must be made to attain a result in respect to the collective membership by fixing certain types.
DR. KUBUSCHOK: We do not fail to recognize the great difficulties which confront the passing of a just sentence when a typical aspect is taken as the basis for judgment. Every attempt to attain, on the basis of a large number of individual witnesses to be brought before the Court, a clear picture of that which is typical would be unavailing. The only way, in our opinion, is to separate the presentation of individual evidence, in respect to time and place, from this Tribunal. One way of achieving this would be an exact interrogation of the individual members at the places where -- this would apply to most of the organizations -- at present large numbers of them are being kept in internment in the various camps. We believe that the best way to investigate individual cases, and the one most suitable to the Court, would be to assign this work to one or more suitable spokesmen in each camp, that is to say, of course, under the supervision and with the assistance of the Defense Counsel or their assistants, and then bring these spokesmen before the Court as witnesses so that they may give a picture of the activity and attitude of the individual members. We believe that the way to get as clearly and conscientiously presented a picture as possible would be for these spokesmen to get from the inmates of the camps affidavits about the main points of Indictment which have been specified by the Prosecution. The spokesmen could then, as witnesses, say under oath what percentage, on the basis of these affidavits of the individual inmates of the camps, had taken part in the criminal actions mentioned in the Indictment or had known anything about them. Certainly there are certain difficulties connected with this which will also have to be considered. In order to get a true picture, one will have to relieve the individual inmates of the suspicion that through a truthful testimony submitted to the Prosecution they might be offering material which could be used against them personally.
DR. KUBUSCHOK: We consider it therefore necessary that insofar as these affidavits are to be presented to the Court as documentary evidence, the Prosecution should make a statement that this material will not be used for the purpose of criminal proceedings against persons. This statement would naturally not involve any immunity for individual members; but the individual inmate of the camp would be assured that the affidavit made by him under oath does not establish his guilt as far as future criminal proceedings are concerned. If the Prosecution do not want to accept this proposal, there would still be the possibility, without submitting these documents, of using the testimony of the spokesmen, who could give information as to the percentage of the people who took part or did not take part in criminal activities or plans.
THE PRESIDENT: Since you have not finished, I think we had better adjourn for 10 minutes. [A recess was taken.]
DR. KUBUSCHOK: Before the recess I referred to a suggestion for getting information about the actions and the attitude of the members by means of typical facts. I continue. This taking of evidence would have, for practical purposes, to extend to a sufficient number of camps in all the zones of occupation. From the results of this taking of evidence a conclusion could then be drawn, on the basis of what is found to be typical, as to the criminal activity and attitude of the individual member of the organization, and at the same time, a conclusion as to whether or not the organization had a criminal nature. If the Prosecution are in agreement with the Defense so far, I believe that I have perhaps found in this way a means of collecting the relevant evidence, including all positive and negative elements. To whatever extent the hearing of inmates of camps does not suffice, which might be true of the one organization or the other, the hearing of members of the organization who are not in custody might have to be considered. Here, too, a proper way could probably be found which would likewise make possible and easier the execution of the tasks of the Tribunal.
DR. SERVATIUS: I, too, should like to take a stand on the questions now being discussed before the Court. I am not at present in a position to take a stand on the profound and well-presented statements which Justice Jackson has made here. I should not dike to make a brief and less carefully thought-out answer, but the Court will understand that I and a number of my colleagues desire to put our case after studying the material and the laws. Perhaps the Tribunal will give us the opportunity to do this very shortly. I should like now to take a stand on these questions along more technical lines, in order to fulfill my duty and on behalf of the Defense to take a clear stand on these clear questions. In the first question it was asked what evidence is to be admitted and what particular evidence should be presented here in the main trial before this Tribunal. The answer is this, that all evidence is relevant which is of significance for the determination of criminality. If one examines the concept "criminal" it is seen that there is no factual situation as defined by criminal law, nor can there be any, for it is not a question of determining the factual elements but rather of a judgment as to whether an act is criminal in the same way as judgment as to whether something is good or bad. Consequently, the Charter does not oblige the Tribunal to pass sentence and declare such-and-such to be criminal, but rather it states that the Tribunal "may" pass such a sentence, but not that it "must" reach such a decision. It can thus be seen that the Tribunal is here confronted with a task which is basically different from the activity of a judge. A judge is obliged, when certain facts determined by law are put before him, to pass sentence, but this Tribunal is to determine the culpability of a set of facts, on the basis of which the judge will later pass sentence. Such a task is, however, that of a legislator and not of a judge. The Tribunal here determines what is deserving of punishment and thereby creates a law.
DR. SERVATIUS: In this way the Tribunal also creates that basis for the procedure which Justice Jackson mentioned in a former address of his -- the basis for procedure in the subsequent individual trials. It is this basis for procedure which the legislator gives to the judge who is to deliver judgment. In such a case the burden of proof is likewise reversed, as Mr. Justice Jackson also has constantly mentioned. It is as if a thief were before the court -- his objection that theft is not punishable, that "possession is theft," would be questioned. That the activity of this Tribunal is legislative can also be seen from the fact that, without setting up the Tribunal, the signatory powers could just as successfully have determined that all members of organizations could be brought before a court because of their membership. Law Number 10 of the Allied Control Council, that has often been mentioned today, corroborates this interpretation, since it constitutes the law for carrying out the skeleton law expected of this Tribunal. The examples of the criminal nature of the organizations that have been given here in Mr. Justice Jackson's address today show again and again that it is a question of laws and not of judgments. It is also characteristic of the legislative function, that in all discussions considerations of expediency take first place and Justice Jackson asked in a previous statement that the verdict should provide the means to proceed against the members of the organizations. It is seen that the Court must deal with de lege ferenda considerations on an ethical basis. But it must be proved that the members of the organizations are punishable, and "punishable" is equivalent to "criminal." In order to determine the factual elements, the judge brings evidence. As legislator, the Tribunal must collect the material for legislation. The judge can, on the basis of the legally proscribed criteria, easily determine what is relevant as proof of these criteria and what he therefore must admit as proof.
DR. SERVATIUS: It is characteristic that such a determination here in this matter makes for difficulties. The legislator proceeds differently from the judge. He studies the facts to see if they deserve punishment, and for him all those facts are relevant which are of significance for the contents of his law. In this matter he must have an over-all picture of the entire problem and must take into consideration both the good and bad aspect of the matter to be judged. The basic principle of justice is that only the guilty be punished. If the legislator wishes to achieve this, he must examine whether only guilty people will be affected by his laws. He must therefore also investigate the objections which any person affected by his law might make. The innocent person is protected in this way, that in the individual case the guilt of the individual must be proved unless the legislator actually has in mind responsibility without guilt. Every killing of a human being is punishable, but whether the person is guilty has to be proved. He can avail himself of the so-called objection that the death was not intentional. If the legislator does not want to permit such an objection, then he must himself examine the material that leads to such an extraordinary measure. The extent of the material to be examined, that is, the taking of evidence, depends on the contents of the law that is to be passed. Inasmuch as in the subsequent individual trials all objections remain open, the Tribunal does not have to concern itself with them. But the Tribunal must consider to what extent the innocent person in the individual trial will have legal guarantees which protect him from an unjust punishment. It is absolutely necessary for the Tribunal also to examine every submission which the individual member cannot bring in the subsequent proceedings. In anticipation of these powers of the Tribunal, it has already been determined by Law Number 10 mentioned above that every member can be punished. Thereby these punishments, of which we have heard in the previous speeches, have already been determined.
DR. SERVATIUS: It thus appears as if the Tribunal could only pass a judgment en bloc without having any right to modify it, and consequently without possessing any influence on the legal effect of its verdict. But such a concept is in contradiction to the basic idea of the Yalta Conference, which was that of transferring to the Tribunal the legislative powers of the signatories, with the express purpose of vindicating this principle of justice, namely, that only the guilty be punished, on the basis of examination of the facts through the hearing of the members in question. Consequently the Tribunal must have a right to determine in individual cases the basic conditions for punishability, and to determine the objections which should remain open to the individual, and the Tribunal must also be able to limit the effect of its judgment by regulation of the punishments. I believe that Mr. Justice Jackson expressed an opinion today which does not contradict this. According to the sense of the Charter, the Tribunal is not permitted to transfer its responsibility to the individual courts by simply leaving for all practical purposes the decision to these courts which because of their composition may have quite different legal views. The members of the organizations have been granted that very right to be heard here before the International Military Tribunal and particularly because of the significance of the judgment, which in all cases contains a grave moral condemnation. To what extent then should the Tribunal concern itself with the material for this taking of evidence? I believe that the Tribunal, in order to determine what is deserving of punishment, must investigate that which is typical, while the purely individual can be left to the subsequent proceedings. This separation of the typical from the individual, however, is not easy, for the submission of the members often has a double significance.
DR. SERVATIUS: Thus the submission of a member that he did not know about the criminal nature of the organization could mean, on the one hand, that such purpose never existed, or, on the other hand, that the member had no knowledge of that purpose which was really there. The first is an objection which concerns the organization, the second a purely personal objection. On the basis of these arguments I should like to answer the Tribunal's first question as follows: The factual elements of criminality as defined by criminal law cannot be found here; the determination of criminality is the determination of punishability as a legislative task of the Tribunal. Examination of evidence in the procedural sense is in reality the examination of the legislative material including the objections of the members of the groups and organizations. To what extent the Tribunal itself must examine the material depends on the scope and the effect which it intends to give and which it is able to give to the verdict. Only that which is not typical and which is not of importance as far as de lege ferenda considerations are concerned, only that can be left to the individual trials. To Questions 2 and 3: Under Point 2 and 3 the Tribunal puts a question regarding the limiting of the groups of members and the limiting of the length of time of the criminality. Both questions touch the same problem, namely, whether such a limitation is dependent on a motion on the part of the Prosecution, or whether the Tribunal itself can limit the contents of its verdict. I believe Mr. Justice Jackson today expressed the opinion that the Tribunal has the power to make such a limitation. But, as regards the political leaders, the Prosecution reserve to themselves the right, in the case of a limitation of the groups of members as proposed by them, later to introduce other trials against these members who are now being excluded or to take other measures. However, such a right is not given to the Prosecution in the Charter.
DR. SERVATIUS: It also stands in contradiction to the natural powers of the Tribunal of including in its decision an acquittal -- a power which cannot be eliminated by reservation made by the Prosecution. The evidence material to be examined also cannot be limited through such a limitation as proposed, for the judgment delivered on the indicted organizations must include these organizations as a whole. It is not permissible to seize upon merely the unhealthy elements of groups during a period which was not typical and still declare the organization criminal. That which is to be considered a group or an organization does not depend on the discretion of the Prosecution, as is also seen in Article 9, Paragraph 1, of the Charter, according to which the criminal character must stand in some relationship to the acts of one of the main defendants. This can only be understood to mean that the membership of the organization must be influenced by the actions of one of the major defendants at a given time. However, this is not for the Prosecution but for the Tribunal to decide. Accordingly, I should like to answer Questions 2 and 3 as follows: Question 2: A limiting of the incriminating period does not depend on a motion of the Prosecution. The Tribunal itself can and must limit the length of time, if the organizations or groups were not deserving of punishment throughout the whole period of their existence. If the actions of the main defendant, as a member of the organization, were not incriminating during the whole period of the existence of the organization, then such a limitation must follow. Question 3: For the limiting of the groups of members the same applies as for the limiting of the period of time. The Tribunal can, on the basis of its own powers, limit the effect that its verdict will have in the case of all groups and organizations. It must undertake this limitation, if the actions of the main defendant in his capacity as a member of the organization are not to incriminate certain groups of members.
DR. SERVATIUS: A limitation of the Indictment or of the effect of the verdict does not limit the evidence material which is the basis of the judgment. These were the remarks I wanted to make in answer to the questions of the Tribunal. I should like now merely to take a stand on a question that has also been brought up today, namely, the application for a legal hearing, if the Tribunal permit me to discuss this question. According to Article 10 of the Charter, every member of an organization can be brought to trial, if the organization has been declared criminal. The decision is left up to the Tribunal. The essential task of the Tribunal is the hearing of the members. Without this hearing a sentence is not possible. That is the basic condition without which the proceedings cannot be carried out. So far, the Defense has about 50,000 applications from the millions of members. In order that the Tribunal should not draw the false conclusion that the overwhelming majority of those affected admit their guilt by remaining silent, I must emphasize that such guilt will be most passionately denied by all those affected. I shall therefore go into the reasons why so few applications have been submitted, and I shall show that this is not the fault of those affected or the result of negligence. Not a lack of interest or disrespect of the Court but rather certain clear facts are responsible for this lack of response. The announcement in the press and over the radio at the beginning of the proceedings regarding the right to be heard was made at a time when there were practically no newspapers in the destroyed cities and radios were a rarity. In addition, because of the paper shortage, it was made in small print and for the most part was simply not understood. The Tribunal ordered an announcement to be made in the internment camps, where a great number of the people affected are concentrated. To what extent this announcement actually was made, I have not yet been able to determine. Mr. Justice Jackson showed various documents this morning and from them I shall be able to inform myself.
DR. SERVATIUS: The fact that so few applications have been made gives cause for concern. But even those people who have obtained knowledge of their right have apparently not been able as yet to make applications to the Court. At the time of the announcement there was no postal service between the various zones, and there are still no postal connections with Austria, where there are probably tens of thousands of men in custody. In the announcement to the organizations, because of the lack of postal facilities, two additional ways were provided for submitting these applications. Both of them proved to be insufficient and are the main reason why we have so few applications. Those members who are not in custody were to submit their applications through the nearest military office. I know of no case in which an application was made in this way. The attempt to use this procedure failed because of the lack of co-operation on the part of the offices. I could give an example of this. The interned members were to submit their applications through the commanding officer of their camp. Only in the case of a few camps, weeks and months after the beginning of the Trial, were applications, which had been made in November, received, and even then only from some of the camps in the American end British zones and from a camp in the United States. From the Soviet, Polish, and French zones, as well as from Austria and other camps in foreign countries where there are camps, no applications have as yet been received, so far as I know. I shall leave it to the Tribunal to form its opinion of these facts. The uniformity of the circumstances shows, however, that it cannot be the fault of the members of the organizations. Of the many difficulties I should like to give only one striking example, which will give an insight into the situation. In one camp about 4,000 members of various organizations asked in November 1945 to be permitted to make use of their right.