dtufail/nuremberg-trials-corpus huggingface dataset:
MR. JUSTICE JACKSON: Only two of these Party formations are named, the SA and the SS, the oldest of the Nazi organizations, groups which had no purpose other than carrying out the Nazi schemes, and which actively participated in every crime denounced by the Charter and furnished the manpower for most of the crimes which we have proved. In administering preventive justice with a view to forestalling repetition of the Crimes against Peace, Crimes against Humanity, and War Crimes, it would be a greater catastrophe to acquit these organizations than it would be to acquit the entire 22 individual defendants in the box. These defendants' power for harm is past. They are discredited men. That of these organizations goes on. If these organizations are exonerated here, the German people will infer that they did no wrong, and they will easily be regimented in reconstituted organizations under new names, behind the same program. In administering retributive justice it would be possible to exonerate these organizations only by concluding that no crimes have been committed by the Nazi regime. For these organizations' sponsorship of every Nazi purpose and their confederation to execute every measure to attain these ends is beyond denial. A failure to condemn these organizations under the terms of the Charter can only mean that such Nazi ends and means cannot be considered criminal and that the Charter of the Tribunal declaring them so is a nullity. I think my colleagues, who have somewhat different aspects of the case to deal with, would like to be heard on this subject.
THE PRESIDENT: Mr. Justice Jackson and Sir David Maxwell-Fyfe, the Tribunal thinks the most convenient course would be to hear argument on behalf of all the chief prosecutors and then to hear argument on behalf of such of the defendants' counsel as wish to be heard, and after that the Tribunal will probably wish to ask some questions of the chief prosecutors.
MR. JUSTICE JACKSON: That will be very agreeable to us.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Mr. Justice Jackson has dealt with the general principles under which the organizations named in the Charter should, in the view of the Prosecution, be dealt with. It is not my purpose to repeat or even to underline his arguments. My endeavor is to comply with Paragraph 4 of the statement of the Tribunal made on the 14th of January of this year. This involves: (a) Summarizing, in respect of each named organization, the elements which, in our opinion, justify the charge of their being criminal organizations. For convenience I shall refer to these as the elements of criminality. (b) Indicating what acts on the part of individual defendants in the sense used in Article 9 of the Charter justified declaring the groups or organizations of which they are members to be criminal organizations. Again for convenience, I shall refer to such defendants in the wording of the Charter, as connected defendants. (c) I shall submit that what I have put forward in writing under (a) and (b) will form the necessary summary of proposed findings of fact under the Tribunal's third point. May I say one word about the mechanics of the position? I thought that it would be convenient if the Tribunal and the Defense Counsel had copies of these suggestions before I address the Tribunal. In pursuance of this, copies have been given to the members of the Tribunal, of course to the court interpreters, and copies in German have been provided for counsel for the organizations and also for counsel for each of the individual defendants. For the convenience of the Tribunal and of counsel, I have circulated two addenda, which contain further references to the transcript and documents on a number of points in the original appendices. These addenda are compiled under the numbers of paragraphs and, although they are in English, should be readily usable by Counsel for the Defense. The result is that there is the summary in Appendices (A) and (B), which I put in, and full reference in all the points in the summary to the transcript and in some cases to documents.
SIR DAVID MAXWELL-FYFE: It is my intention not to read in full all the matters contained in my Appendix (A) and Appendix (B) but to indicate how they fit in with the conception of the Prosecution on this aspect of the case. I shall, of course, be only too ready to read any portions which may be convenient to the Tribunal. I think it would be best to start from the essential probanda which Mr. Justice Jackson has indicated, and perhaps the Tribunal will bear with me while I repeat his five points: 1. The organization or group in question must be some aggregation of persons, (a) in some identifiable relationship, (b) with a collective general purpose. That was Mr. Justice Jackson's first test. 2. Membership in such organization must be generally voluntary, although a minor proportion of involuntary members will not affect the position. 3. The aims of the organizations must be criminal in the sense that its objects included the performance of acts denounced as crimes by Article 6 of the Charter. 4. The criminal aims or methods of the organization must have been of such a character that a reasonable man would have constructive knowledge of the organization which he was joining; that is, that he ought to have known what type of organization he was joining. 5. Some individual defendants, at least one, must have been a member of the organization and must be convicted of some act on the basis of which a declaration of the criminality of the organization can be made. I do not think that I can avoid applying these tests to each of the organizations, but I conceive that this can be done with brevity, and I therefore propose to deal with the organizations seriatim. I take first the Reichsregierung. Under Appendix B of the Indictment this group is defined as consisting of three classes: 1. Members of the ordinary cabinet after the 30th of January 1933.
SIR DAVID MAXWELL-FYFE: The term "ordinary cabinet" is in turn used as meaning: (a) Reich ministers that is, heads of departments; (b) Reich ministers without portfolio; (c) State ministers acting as Reich ministers, (d) other officials entitled to take part in meetings of the cabinet. The second division is members of the Council of Ministers for the Defense of the Reich. The third division, members of the Secret Cabinet Council. It is submitted that, on the evidence placed before the Tribunal, there is no doubt that the first of Mr. Justice Jackson's points, Point 1, is complied with in that there is an identifiable relationship with a collective general purpose, and that this organization is generally voluntary, within Point 2. The aims of the organization are set out in Paragraph 4 of Section A of my Appendix A and the broad submission of the Prosecution is shown in Paragraph 2. Perhaps, as that is short, I might be allowed to read it: "Owing to their legislative powers and functions the members of the Reichsregierung gave statutory effect to the policy of the Nazi conspirators and collectively formed a combination of persons carrying out the executive and administrative decisions of the Nazi conspirators." The Prosecution apply that general submission to the crimes constituted by Article 6 of the Charter in Paragraphs 5, 6, 7, and 8 of that appendix. If the Tribunal would like me to deal further with these paragraphs I should be pleased to read and comment on any that are desired. When it is remembered that the Reichsregierung possessed policymaking, legislative, administrative, and executive powers and functions, and that many of its members held at the same time important positions in the Party and in governmental activities outside the cabinet, enormous political power was concentrated in this group. As I said, the Reichsregierung implemented and gave statutory effect to the program of the conspirators.
SIR DAVID MAXWELL-FYFE: If the Tribunal will be good enough to turn to my Appendix B they will see that 17 of the 21 defendants before the Court were members of the Reichsregierung. The Prosecution have submitted an enormous body of evidence against these 17 defendants, and they now submit that it is sufficient to say that these 17 defendants should be convicted under each Count of the Indictment, and therefore under each portion of Article 6 of the Charter, and that they form the connected defendants with the Reichsregierung, under Mr. Justice Jackson's Point Number 5. The acts which I have mentioned and which are set out in Paragraph 4 of my Appendix A and the other paragraphs are of such a character that no one in a ministerial capacity could fail to have constructive knowledge of their nature and intent. I now pass to the Leadership Corps of the Nazi Party. Mr. Justice Jackson has indicated that the conspirators required wide instruments of support. Hitler boasted of the complete domination of the Reich and of its institutions and of its organizations, internally and externally, by the National Socialist Party. In the Nazi Party, based on the Fuehrerprinzip, its policies and operations were determined not by the membership as a whole but by the corps of bearers of sovereignty and their staff. These leaders were all political deputies, obliged to support and carry out the doctrines of the Party. At every level regular and frequent conferences were held to discuss questions of policy and working measures. The leaders held the Party together, but they also kept the entire populace firmly in the grip of the conspirators through the control of the descending hierarchy of leaders. The Prosecution submit that all these leaders are within the organization which they claim to be criminal, and as Mr. Justice Jackson pointed out the staffs of the Reichsleiter, Gauleiter, and Kreisleiter, which are set out in the volumes of the National Socialist Organization Yearbook as being in these positions.
SIR DAVID MAXWELL-FYFE: The Tribunal will note that we have omitted the staffs of the more junior Hoheitstrager, as Mr. Justice Jackson has pointed out. On that the Prosecution again says that there is no doubt that Points 1 and 2 of Mr. Justice Jackson's criteria are complied with, and they indicate in Paragraphs 1, 2, 3, and 4 of Section B of my Appendix A the elements of criminality; they indicate in my Appendix B the defendants who are involved; and in a latter portion of Appendix B they submit that from the position of these defendants as members of the Leadership Corps and in the Government and the Nazi Party, and further, from the close interconnection between the Government of the Reich and the Party, it is clear that the Leadership Corps is a criminal organization connected with all the crimes charged against all the defendants in the Indictment, including those who were in the Leadership Corps and elaborated before the Tribunal in the individual presentations. The Nazi Party is the core of the conspiracy and criminality alleged, and the defendants are the core of the Nazi Party. Again the Prosecution say that no one living in Germany and taking part in the management, which in this case means literally the ordering of the Nazi Party, could fail to have constructive knowledge of the intentions of its leaders and the methods of carrying these out. This inner circle is in a different position from even the best-informed opinion outside Germany. I now pass to the SS, including the SD. The Prosecution respectfully remind the Tribunal of the statements regarding the composition of the SS and its history, set out shortly in Appendix B of the Indictment, on Page 36 (Volume I, Page 81) of the English text. The Prosecution stands by these statements, which it submits are clear. I do not intend to read them at the present moment.
SIR DAVID MAXWELL-FYFE: The Tribunal has heard in the case regarding the SS -- the transcript Pages 1787 to 1889 (Volume IV, Pages 161-230) -- and the case regarding concentration camps -- Pages 1399 to 1432 (Volume III, Pages 496-518) -- and also the evidence as to the Defendant Kaltenbrunner, of which the reference is given in the addendum. They have also heard in the cases of the French and Soviet delegations additional mountains of evidence with regard to the SS. It is submitted that there is no difficulty on the first three of Mr. Justice Jackson's points, and that the criminality of the SS has been proved several times over. On the fourth point I venture to submit the submission in Paragraph 4 of Section C of my Appendix A, that the crimes of the SS were committed, first, on such a vast scale, and, secondly, over such a vast area that the criminal aims and methods of the SS, which have staggered humanity since this Trial opened, must have been known to its members. It was difficult to drive from one city of Germany to another without passing near to a concentration camp, and every concentration camp contained its SS crimes. In my Appendix B the Tribunal will find the members of the SS who are defendants set out, and, in the second part, a summary of the crimes of the Defendant Kaltenbrunner . The Prosecution gives to him a sinister particularity, while relying also on the crimes of the other defendants who were members.
DR. OTTO PANNENBECKER (Counsel for Defendant Frick): May I point out that in the appendix the Defendant Frick has apparently been included by mistake; among the offices held by the Defendant Frick this is not listed as one of them.
THE PRESIDENT: What do you mean? Do you mean not a member of the SS?
DR.PANNENBECKER: The appendix says that Frick was a member of the SS. This is not the case, and he has also made a statement to this effect in his affidavit.
DR.SEIDL: In the appendix just read out by the prosecutor the Defendant Frank too is included as a member of the SS. Already earlier in the Trial the-American prosecutor submitted Document 2979-PS as Exhibit Number USA-7. This document shows that at no time was Frank a member of the SS or, as is asserted in the Indictment, an SS general. Furthermore I should like to point out to the Tribunal that several months ago, when the Indictment was lodged against the SS as a criminal organization, the name of the Defendant Frank was not mentioned. May I therefore take it that in the drawing up of this appendix a mistake has been made?
DR. THOMA: I should like to make the same statement as that made by my colleague Doctor Seidl on behalf of the Defendant Rosenberg . In Appendix A, which lists the indicted elements Rosenberg is shown as a member of the SA. He was never a member of the SA, and he has already made a statement to this effect in the course of an interrogation.
SIR DAVID MAXWELL-FYFE: The defendants will have the opportunity of disproving these allegations, which are all container in the Indictment; but in view of what has been said, I shall personally check the matter myself. I proceed to deal with the Gestapo. Again, the Tribunal will find the construction and history of the Gestapo set out in Appendix B of the Indictment, and the criminality alleged is set out in Paragraphs 1, 2, and 3 of Section D of my appendix. The second addendum, the Tribunal may care to note, gives the most detailed references to each of these alleged acts of criminality. And the Prosecution submit that from these points which are mentioned it is clear that the first four of Mr. Justice Jackson's points are complied with. The provisions of Articles 7 and 8 of the Charter, in the submission of the Prosecution, make it impossible for the Defense to rely on the official background of the Gestapo, and therefore, as I say, we submit that this clearly comes within the first four of Mr. Justice Jackson's points. If the Tribunal will refer to my Appendix B they will see that the Defendants Goering, Frick, and Kaltenbrunner are alleged to be members, and in the latter part of that appendix we allege, as is the fact, that the crimes of these defendants were committed in their capacities as responsible chiefs of this organization. Then we come to the SA. I again refer to Paragraphs 1 and 2 of Section E of my Appendix A, and I ask the Tribunal to note that, apart from the correct statement of its phases and periods of activity, each of the elements of criminality contained references to the transcript where these matters are proved. I remind the Tribunal of Mr. Justice Jackson's statement, which shows that the Prosecution have omitted ail connected bodies -- even including those who had only been members of the reserve -- about which there can be any argument, even a sentimental argument, as to their full connection. It might be convenient if I reminded the Tribunal of these sections.
THE PRESIDENT: We will adjourn now. [The Tribunal recessed until 1400 hours.] Afternoon Session
SIR DAVID MAYWELL-FYFE: If the Tribunal please, before the Tribunal adjourned, I was about to mention again the bodies on the fringe of the SA, which the Prosecution did not seek to have included in the organizations: First, wearers of the SA Sports Badge. The Tribunal may remember that Colonel Storey explained that they were not strictly members. He wanted to have that point quite clear. Secondly, SA Wehrmannschaften, who were internal defense or home-guard units, controlled by the SA but not members of the SA. Thirdly, SA members who were never in any part of the SA other than the reserve. Fourthly, the NSKOV, the National Socialist League for Disabled Veterans, who were apparently incorporated in the SA; but from the names that have been given -- and the membership -- we do not ask for their inclusion. In Appendix B the Tribunal will find the eight defendants alleged to be connected with the SA, and it is alleged by the Prosecution that the connection of the SA with the conspiracy was so intimate that all the acts of the Defendant Goering would justify the declaration asked for. I now pass to the sixth and last group or organization, the General Staff and High Command of the German Armed Forces. As in this case the Prosecution has drawn an arbitrary line, I may perhaps be allowed to recall briefly its constitution. If the Tribunal will be good enough to look at Appendix B of the Indictment, under this heading, Page 37 of the English text (Volume I, Page 84), they will see that the first nine positions enumerated are special command or chief-of-staff positions. There were 22 holders of these positions between February 1938 and May 1945, of whom 18 are living. The 10th position, of Oberbefehlshaber, includes 110 individual officers who held it. The whole group varied from a membership of 20 at the beginning of the war to about 50 in 1944 or 1945 -- that is, at any one time.
SIR DAVID MAYWELL-FYFE: I remind the Tribunal, however, that the conjoining of these positions is not artificial in reality, because on Page 2115 (Volume IV, Page 399) and the following pages of Colonel Telford Taylor's presentation -- and I refer especially to Pages 2125 and 2126 (Volume IV, Pages 407, 408) -- it will be seen how the holders of the positions enumerated met in fact and in the flesh. This, in our submission, clearly comes within the interpretation of "group" in the Charter which, as Mr. Justice Jackson pointed out, has a wider connotation than "organization"; and we submit that you cannot hold men in the top command against their will. It would be impossible for them to carry on such work on such a condition. Under Section F of my Appendix A, read with the first addendum, there will be found not only the references in the transcript but the references to the captured documents which prove, out of the mouths of the members of this group, the criminality alleged against them under each part of Article 6 of the Charter. These documents also show their actual knowledge and therefore, a priori, their constructive knowledge of the nature of the act. In my Appendix B the five defendants involved are set out; and in the latter part of that appendix the connection of the group, and especially of the Defendants Keitel and Jodl , is emphasized. It is submitted that these facts prevent any difficulty being encountered with regard to this group on any of the five criteria which we say should guide the Tribunal. Finally, may I repeat that, in our respectful submission, the facts contained in Appendices A and B, which are before the Tribunal in writing, clearly indicate the findings of fact for which the Prosecution ask. My friend, M. Champetier de Ribes, will address the Tribunal.
M. CHAMPETIER DE RIBES: May it please the Tribunal, Mr. President and Gentlemen, I shall be careful not to add anything to the very complete statements of Mr. Justice Jackson and Sir David Maxwell-Fyfe. In agreement with my fellow prosecutors, I should like respectfully to draw the Tribunal's attention only to two clauses of French domestic law which deal with questions comparable to those which we are considering today -- and in connection with which I believe the French legislature has had to solve some of the problems with which the Tribunal is concerned -- and especially to reply to the question put by the Tribunal, namely, the definition of the criminal organizations. I shall merely mention Article 265 of the French Penal Code which lays down the general principle of the association of criminals by enacting that: "Any organized association, whatever its structure or the number of its members, any understanding made with the object of preparing or committing crimes against persons or against property, constitutes a crime against public peace." But I should like to draw the attention of the, Tribunal to this fact, that in the course of the last few years France has had occasion to apply this general principle to organizations which greatly resemble those which we are asking you to declare criminal. It is known indeed, Gentlemen, that Nazism is a contagious disease, the ravages of which threaten to go beyond the borders of the countries which it has definitely contaminated. Thus, during the years 1934 to 1936 diverse groups had been formed in France which, following the example of their German and Italian models, were organized with the intention of substituting themselves for the legal government in order to impose in the country what they called "order" but which was in reality only disorder. The French Republic in 1936 did what the Weimar Republic ought to have done.
M. CHAMPETIER DE RIBES: The law of 10 January 1936, promulgated on 12 January in the Official Gazette , which I submit to the Tribunal, and a translation of which was given to the Defense, decreed the dissolution of these groups and enacted severe penalties against their members. With the Tribunal's permission, I shall read the first two clauses of this law: "Article I. By decree of the President of the Republic in session with the Cabinet all associations or de facto groups shall be dissolved which: "1. Might provoke armed demonstrations in public thoroughfares; "2. Or which, with the exception of societies for military preparation sanctioned by the Government and societies for physical education and sport, might by their structure and their military organization have the character of a fighting group or a private militia; "3. Or which might aim at jeopardizing the integrity of the national territory or at attempting to alter by force the republican form of government. "Article II. Any person who has taken part in the maintenance or the reconstitution, direct or indirect, of the association or group as defined in Article I, will be punished by a term of 6 months' to 2 years' imprisonment and a fine of 16 to 5,000 francs." The Tribunal will observe, in the first place, that by imposing severe penalties on members of these associations for the mere fact of having taken part "in the maintenance or the reconstitution, direct or indirect, of the association," the law of 10 January 1936 has recognized and proclaimed the criminal character of the association. The Tribunal will observe, in the second place, that neither the Penal Code nor the law of 10 January 1936 is concerned with giving an exact definition of the association nor with the question as to whether the incriminated association constitutes a moral entity or a legal entity having a legal existence.