dtufail/nuremberg-trials-corpus huggingface dataset:
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): The criminal aims or methods of the organization must have been of such a character that its membership in general may properly be charged with knowledge of them. This again is not specifically required by the Charter. Of course, it is not incumbent on the Prosecution to establish the individual knowledge of every member of the organization or to rebut the possibility that some may have joined in ignorance of its true character. 5. Some individual defendant must have been a member of the organization and must be convicted of some act on the basis of which the organization was declared to be criminal. I shall now take up the subject of the issues, as we see it, which are for trial before this Tribunal, and some discussion of those which seem to us not to be for trial before this Tribunal. Progress of this Trial will be expedited by a clear definition of the issues to be tried. I have indicated what we consider to be proper criteria of guilt. There are also subjects which we think are not relevant before this Tribunal, some of which are mentioned in the specific questions asked by the Tribunal. Only a single ultimate issue is before this Tribunal for decision. That is whether accused organizations properly may be characterized as criminal ones or as innocent ones. Nothing is relevant here that does not bear on a question that would be common to the case of every member. Any matter that would be exculpating for some members but not for all is, as we see it, irrelevant here. We think it is not relevant to this proceeding at this stage that one or many members were conscripted if in general the membership was voluntary. It may be conceded that conscription is a good defense for an individual charged with membership in a criminal organization, but an organization can have criminal purpose and commit criminal acts even if a portion of its membership consists of persons who were compelled to join it.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): The issue of conscription is not pertinent to this proceeding, but it is pertinent to the trials of individuals for membership in organizations declared to be criminal. Also, we think it is not relevant to this proceeding that one or more members of the named organizations were ignorant of its criminal purposes or methods if its purposes or methods were open or notorious. An organization may have criminal purposes and commit criminal acts although one or many of its members were without personal knowledge thereof. If a person joined what he thought was a social club, but what in fact turned out to be a gang of cutthroats and murderers, his lack of knowledge would not exonerate the gang considered as a group, although it might possibly be a factor in extenuation of a charge of criminality brought against him for mere membership in the organization. Even then, the test would be not what the man actually knew, but what, as a person of common understanding he should have known. It is not relevant to this proceeding that one or more members of the named organizations were themselves innocent of unlawful acts. This proposition is basic in the entire theory of the declaration of organizational criminality. The purpose of declaring criminality of organizations, as in every conspiracy charge, is punishment for aiding crimes, although the precise perpetrators can never be found or identified. We know that the Gestapo and the SS, as organizations, were given principal responsibility for the extermination of the Jewish people in Europe, but beyond a few isolated instances, we can never establish which members of the Gestapo or SS actually carried out the murders. Most of them were concealed by the anonymity of the uniform, committed their crimes, and passed on. Witnesses know that it was an SS man or a Gestapo man, but to identify him is impossible.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): Any member guilty of direct participation in such crimes, if we can find and identify him, can be tried on the charge of having committed the specific crimes in addition to the general charge of membership in a criminal organization. Therefore, it is wholly immaterial that one or more members of the organizations were themselves allegedly innocent of specific wrongdoing. The purpose of this proceeding is not to reach instances of individual criminal conduct, even in subsequent trials, and therefore such considerations are irrelevant here. Another question raised by the Tribunal is the period of time during which the groups or organizations named in the Indictment are claimed by the Prosecution to have been criminal. The Prosecution believes that each organization should be declared criminal for the period stated in the Indictment. We do not contend that the Tribunal is without power to condition its declaration so as to cover a lesser period of time than that set forth in the Indictment. The Indictment is specific as to each organization. We think that the record at this time affords adequate evidence to support the charge of criminality with respect to each of the organizations during the full time set forth in the Indictment. Another question raised by the Tribunal is whether any classes of persons included within the accused groups or organizations should be excluded from the declaration of criminality. It is, of course, necessary that the Tribunal relate its declaration to some identifiable group or organization. The Tribunal, however, is not expected or required to be bound by formalities of organization. In framing the Charter, the use was deliberately avoided of terms or Concepts which would involve this Trial in legal technicalities about juristic persons or entities. Systems of jurisprudence are not uniform in the refinements of these fictions. The concept of the Charter, therefore, is a nontechnical one. "Group" or "organization" should be given no artificial or sophistical meaning.
JUSTICE ROBERT H. JACKSON (Chief Counsel for the United States): The word "group" was used in the Charter as a broader term, implying a looser and less formal structure or relationship than is implied in the term "organization." The terms mean in the context of the Charter what they mean in the ordinary speech of people. The test to identify a group or organization is a natural and commonsense one. It is important to bear in mind that while the Tribunal has, no doubt, power to make its own definition of the groups it will declare criminal, the precise composition and membership of groups and organizations is not an issue for trial here. There is no Charter requirement and no practical need for the Tribunal to define a group or organization with such particularity that its precise composition or membership is thereby determined. The creation of a mechanism for later trial of such issues was a recognition that the declaration of this Tribunal is not decisive of such questions and is likely to be so general as to comprehend persons who, on more detailed inquiry, will prove to be outside of it. Any effort by this Tribunal to try questions of exculpation of individuals, be they few or many, would unduly protract the Trial, transgress the limitations of the Charter, and quite likely do some mischief by attempting to adjudicate precise boundaries on evidence which is not directed to that purpose.
THE PRESIDENT: Would this be a convenient time for you to break off for a few moments?
MR. JUSTICE JACKSON: Yes, Sir. [A recess was taken.]
MR. JUSTICE JACKSON: The Prosecution stands upon the language of the Indictment and contends that each group or organization should be declared criminal as an entity and that no inquiry should be entered upon and no evidence entertained as to the exculpation of any class or classes of persons within such descriptions. Practical reasons of conserving the Tribunal's time combine with practical considerations for defendants. A single trial held in one city to deal with the question of excluding thousands of defendants living all over Germany could not be expected to do justice to each member unless it was expected to endure indefinitely. Provision for later local trials of individual relationships protects the rights of members better than possibly can be done in proceedings before this Tribunal. With respect to the Gestapo, the United States and, I believe all of my colleagues consent to exclude persons employed in purely clerical, stenographic, janitorial, or similar unofficial routine tasks. As to the Nazi Leadership Corps we abide by the position taken at the time of submission of the evidence, that the following should be included: The Fuehrer, the Reichsleiter, main departments and office holders, the Gauleiter and their staff officers, the Kreisleiter and their staff officers, the Ortsgruppenleiter, the Zellenleiter, and the Blockleiter, but not members of the staff of the last three officials. As regards the SA, it is considered advisable that the declaration expressly exclude: (1) Wearers of the SA Sports Badge; (2) the SA-controlled home guard units, which were not, as we view it on the evidence, strictly a part of the SA, and there also be excluded the National Socialist League for Disabled Veterans and the SA Reserve, so as to include only the active parts of that organization. The Prosecution does not feel that there is evidence of the severability of any class or classes of persons within the organizations accused which would justify any further concessions, and that no other part of the named groups should be excluded.
MR. JUSTICE JACKSON: In this connection, we would again stress the principles of conspiracy. The fact that a section of an organization itself committed no criminal act, or may have been occupied in technical or administrative functions, does not relieve that section of criminal responsibility if its activities contributed to the over-all accomplishment of the criminal enterprise. I should like to discuss the question of the further steps to be taken procedurally before this Tribunal. Over 45,000 persons have joined in communications to the Tribunal asking to be heard in connection with the accusations against organizations. The volume of these applications has caused apprehension as to further proceedings. No doubt there are difficulties yet to be overcome, but my study indicates that the difficulties are greatly exaggerated. The Tribunal is vested with wide discretion as to whether it will entertain an application to be heard. The Prosecution would be anxious, of course, to have every application granted that is necessary, not only to do justice, but to avoid appearance of doing anything less than justice. And we do not consider that expediting this Trial is so important as affording a fair opportunity to present all really pertinent facts. Analysis of the conditions which have brought about this flood of applications indicated that their significance is not proportionate to their numbers. The Tribunal sent out 200,000 printed notices of the right to appear before it and defend. They were sent to Allied prisoner-of-war and internment camps. The notice was published in all German language papers and was repeatedly broadcast over the radio. Investigation shows that the notice was posted in all barracks of the camps, and it also shows that in many camps it was read to the prisoners, in addition. The 45,000 persons who responded with applications to be heard came principally from about 15 prisoner-of-war and internment camps in British or United States control.
MR. JUSTICE JACKSON: Those received included an approximate 12,000 from Dachau, 10,000 from Langwasser, 7,500 from Auerbach, 4,000 from Staumuhle, 2,500 from Garmisch and several hundred from each of the others. We have made some investigation of these applications, as well as of the sending out of the notices, and we would be glad to place any information that we have at the disposal of the Tribunal. An investigation was made of the Auerbach Camp in the United States zone, principally to determine the reason for these applications and the method by which they came. That investigation was conducted by Lieutenant Colonel Smith Brookhart, Captain Drexel Sprecher, and Captain Krieger, all of whom are known to this Tribunal. The Auerbach camp is for prisoners of war, predominantly SS members. Its prisoners number 16,964 enlisted men and 923 officers. The notice of the International Military Tribunal was posted in each of the barracks and was read to all inmates. All applications to the Tribunal were forwarded without censorship of any kind. Applications to defend were made by 7,500 SS members. Investigation indicates that these were filed in direct response to the notice, and that no action was directed or inspired from any other source within or without the camp. All who were interrogated professed that they had no knowledge of any SS crimes or of SS criminal purpose, but they expressed interest only in their individual fate, rather than any concern to defend the organization. Our investigators report no indication that they had any additional evidence or information to submit on the general question of the criminality of the SS as an organization. They seemed to think it was necessary to protect themselves to make the application here. Turning then to examination of the applications, these, on their face, indicate that most of the members do not profess to have evidence on the general issue triable here. They assert almost without exception that the writer has neither committed nor witnessed nor known of the crimes charged against the organization.
MR. JUSTICE JACKSON: On a proper definition of the issues such an application is insufficient, on its face, to warrant a personal intervention. A careful examination of the notice to which these applications respond will indicate, I believe, that the notice contains no word which would inform a member, particularly if he were a layman, of the narrowness of the issues which are to be considered here, or that he will have a later opportunity, if and when prosecuted, to present personal defenses. On the other hand the notice, it seems to me, creates the impression, particularly to a layman, that every member may be convicted and punished by this Tribunal and that his only chance to be heard is here. I think a careful examination of these notices will bear out that impression and a careful examination of the applications will show that they are in response to that impression. Now, among lawyers there is usually a difference of opinion as to how best to proceed and this case presents no exception to that; there are different ideas. But I shall advance certain views as to how we should proceed from here to obtain a fair and proper adjudication of these questions. In view of these facts we suggest a consideration of the following program for completion of this Trial as to organizations: 1. That the Tribunal formulate and express in an order the scope of the issues and the limitations on the issues to be heard by it. 2. That a notice adequately informing members as to the limitation of the issues and the opportunity later to be individually tried be sent to all applicants and published in the same manner as the original notice. 3. That a panel of masters be appointed, as authorized in Article 17(e) of the Charter, to examine applications and to report those that are insufficient on their own statements and to go to the camps and supervise the taking of any relevant evidence. Defense Counsel and Prosecution representatives should, of course, attend and be heard before the masters.
MR. JUSTICE JACKSON: The masters should reduce any evidence to deposition form and report the whole to this Tribunal, to be introduced as a part of its record. 4. The representative principle may also be employed to simplify the task. Members of particular organizations in particular camps might well be invited to choose one or more to represent them in presenting evidence. It may not be untimely to remind the Tribunal and the Defense Counsel that the Prosecution has omitted from evidence many relevant documents which show repetition of crimes by these organizations in order to save time by avoiding cumulative evidence. It is not too much to expect that cumulative evidence of a negative character will likewise be limited. Some concern has been expressed as to the number of persons who might be affected by the declarations of criminality which we have asked. Some people seem more susceptible to the shock of a million punishments than to shock from 5 million murders. At most the number of punishments will never catch up with the number of crimes. However, it is impossible to state, even with approximate accuracy, the number of persons who might be affected by the declaration of criminality which we have asked. Figures from the German sources seriously exaggerate the number, because they do not take account of heavy casualties in the latter part of the war, and make no allowance for duplication of membership which was large. For example, evidence is to the effect that 75 percent of the Gestapo men also were members of the SS. We know that the United States forces have a roughly estimated 130,000 detained persons who appear to be members of accused organizations. I have no figure from other Allied forces. But how many of these actually would be prosecuted, instead of being dealt with under the denazification program, no one can foretell. Whatever the number, of one thing we may be sure: It is so large that a thorough inquiry by this Tribunal into each case would prolong its session beyond endurance.
MR. JUSTICE JACKSON: All questions as to whether individuals or subgroups of accused organizations should be excepted from the declaration of criminality should be left for local courts, located near the home of the accused and near the source of evidence. The courts can work in one or at most in two languages, instead of four, and can hear evidence which both parties direct to the specific issues. This is not the time to review the evidence against each particular organization which, we take it, should be reserved for summation after the evidence is all presented. But it is timely to say that the selection of the six organizations named in the Indictment was not a matter of chance. The chief reasons they were chosen are these: Collectively they were the ultimate repositories of all power in the Nazi regime; they were not only the most powerful, but the most vicious organizations in the regime; and they were organizations in which membership was generally voluntary. The Nazi Leadership Corps consisted of the directors and principal executors of the Nazi Party, and the Nazi Party was the force lying behind and dominating the whole German State. The Reich Cabinet was the facade through which the Nazi Party translated its will into legislative, administrative, and executive acts. The two pillars on which the security of the regime rested were the Armed Forces, directed and controlled by the General Staff and High Command, and the police forces -- the Gestapo, the SA, the SD, and the SS. These organizations exemplify all the evil forces of the Nazi regime. These organizations were also selected because, while representative, they were not so large or extensive as to make it probable that innocent, passive, or indifferent Germans might be caught up in the same net with the guilty. State officialdom is represented, but not all the administrative officials or department heads or civil servants; only the Reich Cabinet, the very heart of Nazidom within the government, is named.
MR. JUSTICE JACKSON: The Armed Forces are accused, but not the average soldier or officer, no matter how high-ranking. Only the top policy makers -- the General Staff and the High Command -- are named. The police forces are accused -- but not every policeman, not the ordinary police which performed only the normal police functions. Only the most terroristic and repressive police elements -- the Gestapo and SD -- are named. The Nazi Party is accused -- but not every Nazi voter, not even every member, only the leaders. And not even every Party official or worker is included; only "the bearers of sovereignty," in the metaphysical jargon of the Party, who were the actual commanding officers and their staff officers on the highest levels. I think it is important that we observe, in reference to the Nazi Party, just what it is that we are doing here and compare it with the denazification program in effect without any declaration of criminality, in order to see in its true perspective the indictment which we bring against the Nazi Party. Some charts have been prepared. This is a mere graphic representation of the proportions of persons that we have accused, and which we ask this Tribunal to declare as constituting criminal organizations. In the first column are the 79 million German citizens. We make no accusation against the citizenry of Germany. The next is the 48 million voters, who at one time voted to keep the Nazi Party in power. They voted in response to the referendum. We make no charge against those who supported the Nazi Party, although in some aspects of the denazification program the supporters are included. Then come the 5 million Nazi members, persons who definitely joined the Nazi Party by an act of affiliation, by an oath of fealty. But we do not attempt to reach that entire 5 million persons, although I have no hesitation in saying that there would be good grounds for doing so; but as a mere matter of practicality of this situation it is not possible to reach all of those who are technically and perhaps morally well within the confines of this conspiracy.
MR. JUSTICE JACKSON: So the voters are disregarded, the 48 million, the 5 million members are disregarded, and the first that we propose to reach are the Nazi leaders, starting with Blockleiter, which are shown in the last small block, and piled together, amounting to the fourth block on the diagram. It is true that we start with the local block leader, but he had responsibilities -- responsibilities for herding into the fold his 50 households, responsibilities for spying upon them and reporting their activities; responsibilities, as this evidence shows, for disciplining them and for leading them. No political movement can function in the drawing rooms and offices. It has to reach the masses of the people and these block leaders were the essential elements in making this program effective among the masses of the people and in terrorizing them into submission. I submit that on this diagram the accusation which we bring here is a moderate one reaching only persons of admitted leadership responsibilities and not trying to reach people who may have been beguiled into following in an unorganized fashion. We have also accused the formations, Party formations, such as the SA and the SS. These were the strong arms of the Party. These were the formations that the Blockleiter was authorized to call in to help him if he needed to discipline somebody in his block of 50 houses. But we do not accuse every one of the formations of the Party, nor do we accuse any of the 20 or more supervised or affiliated Party groups, Nazi organizations in which membership was compulsory, either legally or in practice, such as the Hitler Youth and the Student League. We do not accuse the Nazi professional organizations, although they were Nazi dominated, like the civil servants' organization, the teachers' organization, and the National Socialist lawyers' organization, although I should show them as little charity as any group. We do not accuse any Nazi organizations which have some legitimate purpose, like welfare organizations.