dtufail/nuremberg-trials-corpus huggingface dataset:
DR. LATERNSER: Mr. President, it was not my intention to make statements today about the concept of the criminal organizations, because I believe that my statements of yesterday on this point were comprehensive. I should merely like to state briefly my attitude to the second question put by Mr. Biddle to my colleague, Kubuschok. The second question, if I understood it correctly, was as follows: Why is it unfair to the individuals who were members of an organization, or why can it be unfair to them, if this organization is declared criminal? This declaration of the criminality of an organization is certainly unfair to all those members who had no knowledge of any supposedly criminal purpose and aims. For in this question one has to...
THE TRIBUNAL (Mr. Biddle): You misunderstood the question, I think; so, to save time -- the question was a very simple one. I do not want to go into it unless you want to. I will repeat it again. I said this: If an organization was being used for criminal purposes -- and I added that there was very great evidence that such was the case in certain instances -- why would it not be proper to hold it a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained. members? Of course, that would exclude from the organization everybody who did not have knowledge that it was engaged in criminal purposes.
DR. LATER1NSER: Then I did not understand the question quite correctly, and further statements in regard to these questions, which have now been settled, are unnecessary.
DR. LOFFLER: I should like first of all to correct a misunderstanding. Sir David stated yesterday in his reply that I had admitted that the SA had participated in the 10th and 11th of November 1938. I emphasize expressly that I stated that only 2 percent of the SA at the most were involved in individual actions, and that obviously applies to this event as well. This example occasions me to underscore what my colleague, Servatius, has previously stated about taking into consideration the so-called mistake of an organization, in a case where an organization deviates from its path and commits an error -- which should be avoided. The 98 percent who did not participate, as well as the 2 percent who did participate there, with few exceptions, all regarded this action with aversion and disgust and were not inwardly in agreement with it. It is therefore an error on the part of the Indictment if on the basis of this single event, on the basis of this exceptional case, general conclusions are drawn as to the general character of the organization. For it is rightfully protested that the very rejection of this action is a proof that this is an exception to the general tendency of the organization. If, then, it is asserted as a second point that the SA visas also concerned with concentration camps, that is also a further typical proof of the false conclusion to which one can come in the case of Judgment against the organizations. Of 4 millions there were 1,000 men at the most, that is, only 0.5 percent. The remaining 3,999,000 had no knowledge of this, and this can be proved. No one will wish to claim that the fact that 0.5 percent were involved in something about which the others knew nothing at all allows a conclusion to be drawn as to the question of criminal character. But this small percentage, as such, is not an answer to the question which is being raised at this point.
DR. LOFFLER: Rather we are, as before, of the opinion that the explanation which divas made by attorney Kubuschok absolutely covers the criminal character as formulated by the Defense, if the basic conditions are met, as set down by attorney Kubuschok in agreement with all defense counsel for the organizations. On the basis of this formulation, that question which Justice Biddle previously put to counsel for the various organizations can readily be answered. I should like to emphasize that yesterday Mr. Justice Jackson made the suggestion that, instead of having countless witnesses, experts be heard on the subject of what willful intent can be assumed in the case of the single organizations. I should like to oppose this emphatically. One cannot hear any witness or any expert who can tell the Court what, so to speak, that "common sense" was on the basis of which the question is to be judged --  what knowledge the single members had. The members, as far as intelligence is concerned, vary greatly. There are those of average intelligence and there are less intelligent members of the organizations. If a judgment is to be passed here which also affects less intelligent members of the organizations and condemns them, then it is a basic principle of law that this should not be done on the basis of what the intelligent members of the organizations might and could have known; that would be an injustice to the average persons and the less intelligent. Not even the average persons can be taken as a basis, since this would be an injustice to the still less intelligent, who would be included in and affected by this judgment. In conclusion I should like to point out that yesterday's debate on the question of the effect of the judgment which this Court is to pass confirmed in full measure the fears of the Defense Counsel. Mr. Justice Jackson declared that this judgment would have the character of a declaration.
DR. LOFFLER: This is not compatible with the statement which Lieutenant General Clay, the Deputy Military Governor of the American occupied zone, made yesterday in an interview for the Neue Zeitung , the American paper for the German population. I should like to quote a sentence from the latest issue which refutes Justice Jackson's opinion. Lieutenant General Clay declares in regard to the question of the fate of these interned in the United States zone of occupation: "The decision of the Nuremberg Tribunal will decide what will happen to them. Their number is at present 280,000 to 300,000. Should the International Tribunal at Nuremberg, however, consider all the members of the indicted National Socialist organizations war criminals, then the number will be increased to 500,000 or 600,000." The declaration made by Justice Jackson yesterday that no mass retribution is intended could be made only in reference to the present standpoint of his Government. But there is no guarantee that other governments will not take another stand or that his Government, which is not bound to Justice Jackson's opinion, will not alter its stand. I should like to conclude with this remark: Justice Jackson mentioned the shock which the combination of the Charter and decision desired by the Prosecution -- in connection with Law Number 10 --  has been to the Defense. I believe that the effect of this shock is not confined to the Defense alone but affects all people who are interested in justice, for if the combination of these various laws gives the national courts the opportunity to call millions of members of organizations to account -- among whom, as Justice Jackson also could not deny yesterday, there are innocent people -- and if punishments for mere membership ranging from a fine to the death sentence are provided, then it is the duty of the Defense to point out that the procedure here obviously threatens to deviate from the basis of law and will necessarily lead to arbitrary action.
DR. LOFFLER: If Justice Jackson then in answer to this refers to the effect of shock in connection with the death of many Jews, one can say that those things happened outside the law and in the name of force. This Charter and this Tribunal, however, want to do away with force and put justice in its place. But justice must be clear and it must be sure.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Tribunal said earlier that certain questions had been asked of me. I am perfectly prepared to answer the three questions if the Tribunal desire their time to be occupied by my so doing.
THE PRESIDENT: I don't think the Tribunal wish to hear any further arguments unless you particularly want to answer anything.
SIR DAVID MAXWELL-FYFE: I did not intend to argue at all. It was only that Dr. Dix put two questions to me on which he asked my view, and Dr. Servatius one, but I am in the hands of the Tribunal. I do not want it to be thought that the Prosecution are not prepared to answer the questions.
THE PRESIDENT: If you can answer them shortly, we should be quite glad to hear them.
SIR DAVID MAXWELL-FYFE: The first question that Dr. Dix asked me was to clarify what I had said about the Fuehrerprinzip in relation to the Reichsregierung. I can answer that in two sentences. I said that, in addition to the ordinary support which members of the Reichsregierung in 1933 gave to Hitler under the Fuehrerprinzip they entrusted their consciences and wills to him and adopted completely his points of view. In order that Dr. Dix may be under no misapprehension with regard to his client, the case for the Prosecution may be put in the words of Dr. Goebbels, one of the conspirators, on the 21st of November 1934, in conversation with Dr. Schacht: "I assured myself that he absolutely represents our point of view. He is one of the few who accepts the Fuehrer's position entirely." The second point was on the question of the Party program in relation to the Treaty of Versailles and the Anschluss. Dr. Dix asked me to deal with those who desired to effect the alms 'of the Party program in a peaceful way. The Prosecution say that does not arise, that the Party program must be considered in the background of Hitler and other publications as to the use of force and also as to the existing state of things in the relationship of Germany with the Western Powers and also of treaty obligation to Austria and Czechoslovakia. The third question that was put to me was by Dr. Servatius, about the Leadership Corps. You will remember, My Lord, that in the statement of the Tribunal the Prosecution were asked, if' they revere making any limitation, to make it now. That is contained in the statement of the Tribunal. The limitation which we have made -- that is, only including the staff in the case of the Reichsleitung, Gauleitung, and Kreisleitung, and excluding the staff in the case of the Ortsgruppenleiter, Zellenleiter, and Blockleiter -- is the view to which the Prosecution adhere and which has been agreed upon by the different delegations. I wanted Dr. Servatius to know that that was the position. I don't intend to repeat the reasons for it which were given by my friend, Mr. Justice Jackson.
THE PRESIDENT: There is only one thing I should like to say. I think it might be useful to the Tribunal, if you have them, to let us have copies of the British statutes to which Mr. Justice Jackson referred and also of certain judgments of the German court if you have copies available.
SIR DAVID MAXWELL BYTE: They will be found for the Tribunal and the Tribunal will receive them within the shortest possible time.
THE PRESIDENT: Mr. Dodd, I understand that you have an affidavit which you wish to put in with reference to the High Command?
MR. DODD: Yes, we do have it. We located this affidavit on Thursday; the Tribunal had inquired about it on the afternoon of the day before -- on Wednesday, I believe it was. We have prepared for the Tribunal a list of the offices comprising the German General Staff and High Command as defined by the Indictment in Appendix B. The list was compiled from official sources in the Admiralty Office of Great Britain, the War Office of Great Britain, and the Air Ministry of Great Britain, and supplemental information was obtained from senior German officers, now prisoners of war in England and in Germany. The list is attached to this affidavit, as we intended to submit it this morning to the Tribunal; and the affidavit describes the source from which this information was obtained and it points out that the list does not purport to be exhaustive or necessarily correct in every detail. It is, however, substantially a complete list of the members of the General Staff and of the High Command and of the High Command group, and on the basis of this compilation there appear to have been a total of 131 members, of whom 114 are thought to be living at the present time. I wish to offer the list formally, together with this affidavit, as Exhibit Number IJSA-778 (Document Number 3739-PS). I ask that it be accepted without reading. However, of course, if the Tribunal would like it read over the public address system, I should be glad to do so.
THE PRESIDENT: No, I do not think you need read it over. Copies have been given to the Defense?
MR. DODD: Yes, they have, Your Honor. They have been given to the Defense.
THE PRESIDENT: Very well. Thank you.
MR. DODD: Colonel Smirnov, if Your Honor pleases, is prepared to read the document with reference to Stalag Luft III. If the Tribunal would like, we will have him do so.
THE PRESIDENT: I think that might perhaps be done on Monday morning.
MR. DODD: Very well.
THE PRESIDENT: The Tribunal will now adjourn. [The Tribunal adjourned until 4 March 1946 at 1000 hours.]
MR. COUNSELLOR SMIRNOV: Sir, a few days ago the Tribunal issued instructions concerning the expedience of reading into the record the official British report on the responsibility for the slaying of 50 officers of the Royal Air Force coincidentally, as far as possible, with the proposed interrogatory of General Westhoff and the senior criminal counsel, Wielen. May I read into the record some of the more essential passages from this report of the British Government? I shall read into the record those parts of the document which, on the one hand, testify to the general character of this criminal act and, on the other hand, establish the responsibility for the crime.
THE PRESIDENT: Colonel Smirnov, you are offering the document, are you, as evidence? You are seeking to put the document in evidence?
MR. COUNSELLOR SMIRNOV: This document has already been presented in evidence and has already been accepted by the Tribunal. I wished only to read into the record certain extracts from this document. It has been submitted as Exhibit Number USSR-413 (Document Number UK-48).
THE PRESIDENT: Very well.
MR. COUNSELLOR SMIRNOV: I am quoting Paragraph 1 of the official British report: "1. On the night of 24-25 March 1944, 76 R.A.F. officers escaped from Stalag Luft III at Sagan in Silesia, where they had been confined as prisoners of war. Of these, 15 were recaptured and returned to the camp, 3 escaped altogether, 8 were detained by the Gestapo after recapture. Of the fate of the remaining 50 officers the following information was given by the German authorities: "(a) On 6th April 1944, at Sagan, the acting commandant of Stalag Luft III (Oberstleutnant Cordes) read to the senior British officer (Group Captain Massey) an official communication of the German High Command that 41 officers (unnamed) had been shot, 'some of them having offered resistance on being arrested, others having tried to escape on the transport back to their camp.' "(b)On 15th April l914, at Sagan, a member of the German camp staff (Hauptmann Pieber) produced to the new senior British officer (Group Captain Wilson) a list of 47 names of the officers who had been shot. "(c) On 18th May 1944, at Sagan, the senior British officer was given three additional names, making a total of 50. "(d) On or about 12th June 1944, the Swiss Minister in Berlin received from the German Foreign Office, in reply to his enquiry into the affair, a note to the effect that 37 prisoners of British nationality and 13 prisoners of non-British nationality were shot when offering resistance when found or attempting to re-escape after capture. This note also referred to the return of urns containing the ashes of the dead to Sagan for burial." The official German version -- the official version of the German authorities -- indicated that these officers were shot allegedly while attempting to escape. As a matter of fact, as definitely proved by the documentation of the investigation carried out by the British authorities, the officers were murdered -- and murdered by members of the Gestapo on direct orders from Keitel and with the full knowledge of Goering.
MR. COUNSELLOR SMIRNOV: I shall, with your permission, read into the record in confirmation of this fact two paragraphs -- or rather two points -- from the official British report, that is, Point 7 and Point 8: "7. General Major Westhoff at the time of the escape was in charge of the general department relating to prisoners of war, and on 15th June 1945 he made a statement in the course of which he said that he and General Von Graevenitz, the inspector of the German POW organization, were summoned to Berlin a few days after the escape and there interviewed by Keitel. The latter told them that he had been blamed by Goering in the presence of Himmler for having let the prisoners of war escape. "Keitel said, 'Gentlemen, these escapes must stop. We must set an example. We shall take very severe measures. I can only tell you that the officers who have escaped will be shot; probably the majority of them are dead already.' When Von Graevenitz objected, Keitel said, 'I do not care a damn; we discussed it in the Fuehrer's presence and it cannot be altered.'" Point 8: I begin the quotation of the official British report: "Max Ernst Gustav Friedrich Wielen was then the officer in charge of the Criminal Police (Kripo) at Breslau, and he also made a statement, dated 26th August 1945, in the course of which he said that as soon as practically all the escaped R.A.F. Officers had been recaptured he was summoned to Berlin where he saw Arthur Nebe, the Chief of the Kripo head office, who showed him a teleprint order signed by Kaltenbrunner , which was to the effect that on the express order of the Fuehrer over half of the officers who had escaped from Sagan were to be shot after their recapture. It was stated that Muller had received corresponding orders and would give instructions to the Gestapo.
MR. COUNSELLOR SMIRNOV: According to Wielen the Kripo, who were responsible for collecting and holding all the recaptured prisoners, handed over to the Gestapo the prisoners who were to be shot, having previously provided the Gestapo with a list of the prisoners regarded by the camp authorities as 'troublesome.' " I would also ask the Tribunal's permission to read into the record that part of the text of the official report of the British Government which deals with the methods of investigation in regard to individual officers. This documentation has been systematized and divided into three parts. I take the liberty of reading into the record the data of the findings referring to the three separate parts. I quote Page 3 of the Russian text, beginning from Paragraph 2: "Flight Lieutenants Wernham, Kiewnarski, Pawluk, and Skanziklas. "On or about 26th March 1944...
THE PRESIDENT: Colonel Smirnov, are you going to read now some of the evidence upon which the report is based?
MR. COUNSELLOR SMIRNOV: Mr. President, I should like to read out only from the text proper and particularly those parts of the report which testify to the methods of investigation applied in the case of individual officers. I should like to begin reading from the paragraph dealing with the three groups of officers.
THE PRESIDENT: Paragraph 4?
MR. COUNSELLOR SMIRNOV: Yes.
THE PRESIDENT: Very well.
MR. COUNSELLOR SMIRNOV: "On or about the 26th of March 1944 these officers were interrogated at the police station in Hirschberg and were then moved to the civil gaol in that town. On the morning of 29th March Pawluk and Kiewnarski were taken away and later in the day Skanziklas and Wernham left. Both parties were escorted, but their destination was unknown. They have not been seen since and the urns later received at the Stalag showing their names bear the date 30th March 1944." And now the next group of British officers: "Squadron Leader Cross, Flight Lieutenants Casey, Wiley, and Leigh, and Flight Officers Pohe and Hake. "Between 26th and 30th March 1944 these officers were interrogated at the Kripo headquarters in Gorlitz and then returned to the gaol there. During the interrogation Casey was told that 'he would lose his head,' Wiley that 'he would be shot,' and Leigh that 'he would be shot.' Hake was suffering from badly frostbitten feet and was incapable of traveling for any distance on foot. On 30th March the officers left Gorlitz in three motor cars accompanied by 10 German civilians of the Gestapo type. The urns later received at the Stalag bear their names and show them to have been cremated at Gorlitz on 31st March 1944. "Flight Lieutenants Humpreys, McGill, Swain, Hall, Langford, and Evans; Flight Officers Valenta, Kolanowski, Stewart, and Birkland. "These officers were interrogated at the Kripo headquarters in Gorlitz between 26th and 30th March. Swain was told that 'he would be shot,' Valenta was threatened and told that 'he would never escape again.' Kolanowski was very depressed after his interview. On 31st March these officers were collected by a party of German civilians, at least one of whom was in the party which had come on the previous day. The urns later received at the Stalag bore their names and show them to have been cremated at Liegnitz on a date unspecified." I wish to draw the attention of the Tribunal to the fact that similar data also relate to different groups of British officers slain by the Germans in Stalag Luft III.
MR. COUNSELLOR SMIRNOV: The following page of the text includes identical data relating to Flight Lieutenants Grisman, Gunn, Williams, and Milford, Flight Officer Street and Lieutenant McGarr. Similar information is given concerning Flight Lieutenant Long, Squadron Leader J. E. Williams, Flight Lieutenants Bull and Mondschein, and Flight Officer Kierath. The same information is given with reference to Flight Officer Stower, Flight Lieutenant Tobolski, Flight Officer Krol, Flight Lieutenants Wallen, Marcinkus, and Brettell, Flight Officer Picard and Lieutenants Gouws and Stevens, Squadron Leader Bushell and Lieutenant Scheidhauer, Flight Officer Cochran, Lieutenants Espelid and Fugelsang, Squadron Leader Kirby-Green and Flight Officer Kidder, Squadron Leader Catanach and Flight Officer Christensen, and Flight Lieutenant Hayter. I shall, with your permission, read into the record one more paragraph from this official report. I refer to Paragraph 6 of the official British report and also to Paragraph 5, because it is of essential importance.
THE PRESIDENT: I was going to suggest you should read Paragraph 5.
MR. COUNSELLOR SMIRNOV: I am going to read Paragraph 5 of the British text: "According to the evidence of the survivors there was no question of any officers having resisted arrest or of the recaptured officers having attempted a second escape. All were agreed that the weather conditions were against them and that such an attempt would be madness. They were anxious to be returned to the Stalag, take their punishment, and try their luck at escaping another time. "6. The Swiss representative (M. Gabriel Naville) pointed out on 9th June 1944 in his report on his visit to Sagan that the cremation of deceased prisoners of war was most unusual (the normal custom being to bury them in a coffin with military honors) and that was the first case known to him where the bodies of deceased prisoners had been cremated. Further it may be noted that if, as the Germans alleged, these 50 officers who were recaptured in widely scattered parts of Germany had resisted arrest or attempted a second escape, it is probable that some would have been wounded and most improbable that all would have been killed. In this connection it is significant that the German Foreign Office refused to give to the protecting power the customary details of the circumstances in which each officer lost his life." Those are the parts of the official report of the British Government which I had the honor to communicate to the Court.
THE PRESIDENT: I think it would perhaps be better if you also read the appendix so as to show the summary of the evidence upon which the report proceeded, Paragraph 9.