Chapter XXIII: Section C: of my Appendix A, that the crimes of the SS were committed, (5)

I find an interesting quotation from the semi-official publication, _Das Archiv_, for April 1942, and as it is very short and deals with these points I venture to read it to the Tribunal, so that it may appear on the record. At Page 54 it says:

“SA Unit, Government General. At the order of the Chief of Staff
of the SA, there took place the foundation of the SA unit,
Government General, whose command Governor General SA
Obergruppenführer Dr. Frank took over.”

I only quote that to finish my argument to show, as indeed all the evidence shows, that with regard to the SA, no less than any other of the organizations, the Prosecution have provided evidence of crimes reaching over the period which they have stated.

I deliberately have cut out anything further that I might say, My Lord, because I do not want to shorten unduly the time, if the Tribunal wishes to ask me any questions.

THE PRESIDENT: I think there is only one question that I should like to ask you. As I understand it, you say that the Prosecution have proved facts from which one must conclude that every reasonable person who joined any of these organizations would know that they were criminal.

SIR DAVID MAXWELL-FYFE: Yes.

THE PRESIDENT: You would agree, would you not, that proof of any fact which went to contradict the facts from which you have presumed knowledge of criminality could be proved by the Defense?

SIR DAVID MAXWELL-FYFE: Certainly. If the Defense sought to prove, to take an extreme example, that the conduct of the SS with regard to, first of all, concentration camps and, secondly, killing Jews and political commissars on the Russian front, was done in such a way, despite the vast territory over which these crimes have been proved to have been carried on, was done in such a way that nobody knew about it—if there was relevant evidence on that point, then they could call it, on the general point that it was not a matter of imparted constructive knowledge, but of memory.

THE PRESIDENT: I only asked you that question because there were certain observations by Mr. Justice Jackson, which did not seem altogether to accord with the answer which you have just given.

SIR DAVID MAXWELL-FYFE: I think that, as I understood Mr. Justice Jackson, he was saying that it might not be relevant to prove that one member did not know of the crimes, and I thought that our two approaches really did fit in with each other.

THE PRESIDENT: Yes.

THE TRIBUNAL (Mr. Biddle): I take it then, Sir David, that you would say that evidence with respect to general knowledge by any very substantial segment of an organization would be relevant, would it not?

SIR DAVID MAXWELL-FYFE: Well, I think it would be relevant if it were not absurd. I mean, a disclaimer of knowledge of certain acts may be so absurd that the Tribunal should not take the time of inquiring into it.

THE TRIBUNAL (Mr. Biddle): That would apply to any evidence, of course. But my point was: You have said that evidence with respect to general knowledge over a whole organization would clearly be relevant.

SIR DAVID MAXWELL-FYFE: Certainly.

THE TRIBUNAL (Mr. Biddle): And now I ask you whether that would be true with respect to any substantial segment of an organization such as the Waffen-SS.

SIR DAVID MAXWELL-FYFE: I am trying to relate it to the practical position. That is where I find it very difficult.

Now, to take your example, it is difficult to imagine. Let us take four divisions that were very well known: the Totenkopf, the Polizei, Das Reich, or the 12th Panzer Division. I should have thought that, as a matter of discretion, if it were sought to show that these divisions, about which there is so much evidence as to their participation in crime, did not know of the crimes, the Tribunal would be right in rejecting that.

THE TRIBUNAL (Mr. Biddle): Well, the question would come up more whether the acts of the members of certain divisions were known generally throughout the whole Waffen-SS, would it not?

SIR DAVID MAXWELL-FYFE: With the greatest respect, I find it very difficult to see how the knowledge or absence of knowledge of a particular division in the Waffen-SS could affect the question of criminality of the SS as a whole.

THE TRIBUNAL (Mr. Biddle): Well, again, I am not asking you as to knowledge in a particular division; I am asking you as to general knowledge, throughout the entire Waffen-SS, of the acts of a particular unit.

SIR DAVID MAXWELL-FYFE: Well, if someone is prepared to say, “I knew every division of the Waffen-SS, and in my opinion no one in the Waffen-SS had any knowledge or had any opportunity of knowing of the crimes,” then the evidence would be admissible. Its weight would be so negligible that, I should submit, it would not detain the Tribunal long.

But I concede that if someone is prepared, laying the proper ground for his evidence, to say, “I can speak; I have the grounds for and the opportunity of speaking on the general position,” then I do not see how the Tribunal could exclude it.

THE TRIBUNAL (Mr. Biddle): The matter is very practical because we have to advise Counsel for the Defendants what material they can introduce, and do that very soon.

SIR DAVID MAXWELL-FYFE: Certainly.

THE TRIBUNAL (Mr. Biddle): Now let me ask you a few other questions.

On what basis, Sir David, do you contend that the Reich Cabinet was a criminal organization as of January 30, 1933, when, if I remember correctly; there were only three members of the Nazi Party who were in the Cabinet: Göring, Hitler, and Frick? Do you think that if three out of a very much larger number, some twenty odd, could be said to be part of a criminal organization, that makes the entire Cabinet criminal?

SIR DAVID MAXWELL-FYFE: Certainly, on the facts. It must be remembered that Hitler had refused to take office as vice chancellor during the months before that, before the date that you put to me. He had refused on the ground that, as vice chancellor, he would not be in a position to carry out his Party program. On that basis the Defendant Von Papen and Hitler negotiated, and Hitler came into power on the 30th of January. It is the case for the Prosecution that those who formed part of that Cabinet knew that they were forming part of a cabinet in which Hitler was going to work out his program, as has been declared on so many occasions. That is the first point. Secondly, it is the case for the Prosecution that the Defendant Von Papen did join in introducing the Nazi conspirators into the Government with that knowledge and with the purpose of letting them have their way in Germany. And the same must apply—it has not been investigated to the same extent, because they are not defendants—to the industrialists and the Party, who were acting with them in the Cabinet. They must be taken to have known, just as Gustav Krupp knew and supported, just as Kurt von Schröder knew and supported, the aims of the Nazis whom they introduced and co-operated with in the Government.

Thirdly, the personalities of the Nazis in the Government—Hitler himself, and the Defendants Göring, Frick, and Dr. Goebbels, who I think became Propaganda Minister either at the same time or very shortly afterwards—show that these people, they have shown it by their acts, were not persons to take second place. They introduced at once the Führerprinzip into operation in the states, and these other people in the Cabinet at that time accepted the Führerprinzip and united in placing Hitler and the Defendant Göring and the other conspirators in the position of power and authority which enabled them to carry out their monstrous crimes that are charged against them.

I will give you one other reference. It was within a few months of that period that the Defendant Schacht became Plenipotentiary for War Economy and began the preparations for the economic side of the creation of Germany’s war potential.

For all these reasons I submit that the actions of the Reich Cabinet at that date were deliberate. The same applies to the Defendant Von Neurath; it is the whole case of the Prosecution, as to the case against Von Neurath, that he sold his respectability and reputation to the Nazis in order to help them buy with that reputation and respectability a position of power in Germany, with the conservative circles in Germany, and with the diplomatic circles in Europe with whom he came in touch. For all these reasons, Your Honor, I submit that the Reichsregierung at that time was thoroughly infected with the criminality which we suggest in this case.

THE TRIBUNAL (Mr. Biddle): In relation to the political leaders, let me ask you this, Sir David:

In your opinion, would it be necessary to establish the responsibility of political leaders of lower grades to show that, as a group, they were informed of plans to wage aggressive war or to commit War Crimes or Crimes against Humanity? In other words, I take it there is some obligation to show that information. Does that rest simply on the fact that these crimes were being perpetrated, or is there any evidence of that information?

SIR DAVID MAXWELL-FYFE: There is evidence—and if I might just indicate the kind of evidence there is—on the first stage of the acquisition of totalitarian control in Germany, which is the first stage in the conspiracy, that is, apart from the Party program, there are the extracts from the Hoheitsträger magazine. You remember, Hoheitsträger are all the political leaders. On the anti-Semitic part of that there are documents, which are Exhibit USA-240 (Document Number 3051-PS) and Exhibit USA-332 (Document Number 3063-PS), which are shown in the transcript at Pages 1621 and 1649 (Volume IV, Pages 47 and 66). On the question of war crimes against Allied airmen you will remember that a document was circulated to Reichsleiter, Gauleiter, Kreisleiter, with instructions that Ortsgruppenleiter were to be informed verbally with regard to the lynching of Allied airmen. That document is Document Number 057-PS, shown in the transcript at Page 1627 (Volume IV, Page 50). And that the hint was taken by at least one Gauleiter is shown by Document L-154, Exhibit USA-325, at Page 1628 (Volume IV, Page 51).

Then, there is a Himmler order to senior SS officers, to be passed orally to the Gauleiter, that the police are not to interfere in the clashes between Germans and aviators. That is Document Number R-110, Exhibit USA-333, shown at Page 1624 (Volume IV, Page 49). Then there is a declaration by Goebbels inciting the people to murder Allied airmen, which is shown at Page 1625 (Volume IV, Page 50). Similarly, with regard to foreign labor, there is a telegram from Rosenberg to the Gauleiter asking them not to interfere with the confiscation of certain companies and banks.

There is Jodl’s lecture to Reichsleiter and Gauleiter at a later stage. There is an undated letter from Bormann to all Reichsleiter and Gauleiter, informing them that the OKW had instructed guards to enforce obedience of prisoners of war refusing to obey orders, if necessary, with weapons.

THE TRIBUNAL (Mr. Biddle): Sir David, if I may interrupt you for a moment. I was familiar with the evidence with respect to the Gauleiter and Reichsleiter. My question, you will remember, was addressed to the lower levels, the Blockleiter.

SIR DAVID MAXWELL-FYFE: Well, I think one can summarize it that even as far as lower levels are concerned you have the four points: You have _Mein Kampf_, the _Party Program_, _Der Hoheitsträger_, and the fact that conferences were constantly held throughout the organization.

As I say, I have dealt with the evidence on the Jews, the lynching of Allied airmen, and I think I mentioned the letter from Bormann to the Reichsleiter, Gauleiter, and Kreisleiter about assisting in increasing the output of prisoners of war. And there is an instruction from Bormann down to the Kreisleiter about the burial of Russian prisoners of war. There is a decree for insuring the output of foreign workers that goes down towards the Gruppenleiter.

All these matters are in evidence, and we submit that there is particular evidence on practically every point. And on the general point, as I said, you have these publications, coupled with the evidence that conferences were held, apart from the general Führerprinzip which would, and did, make the Zellenleiter and the Blockleiter the final weapon in order to ensure that the people acted in accordance with the leader’s wishes.

THE TRIBUNAL (Mr. Biddle): Let me ask you just two questions, and then I will finish with regard to the SA. Would you say that a member of the SA who had joined, let us say, in 1921, and resigned the next year, was guilty of conspiring to wage aggressive war and guilty of War Crimes?

SIR DAVID MAXWELL-FYFE: Yes, in this sense. If I may recall, I answered a question that you were good enough to put to me a day or two ago as to when the conspiracy started. A man who took an active and voluntary part as a member of the SA in 1921 certainly, in supporting the Nazi Party, was supporting the published program of the Party which had the aims which you have just put to me.

That is certainly put clearly in Article 2 of the Party Program as the getting rid of the dictate of Versailles and the Anschluss, getting the Germans back to the Reich, which, of course, is only a polite way of saying destroying Austria and Czechoslovakia.

Therefore, that man had these aims in view.

With regard to War Crimes, I respectfully repeat the answer that I put to you the other day, that it was an essential tenet of the Nazi Party that they should disregard the life and safety of any other people who stood in the way of the securing of their ambitions. A person who deliberately joins an organization with that aim, and with that aim getting more and more clearly related to practical problems as week succeeded week, was taking part in a first essential step of involving mankind in the miseries that we have seen; because it is that tenet, applied to every facet of human life and human suffering, which has caused the crimes which this Tribunal is investigating.

THE TRIBUNAL (Mr. Biddle): Well, I can see how you might say that with respect to conspiracy in War Crimes, but I want to be perfectly clear also that you say, on the substantive crime of committing War Crimes, that a man joining the SA in 1921 and leaving in 1922 would have committed those War Crimes in the beginning of 1939.

SIR DAVID MAXWELL-FYFE: If you put to me the substantive War Crimes, I respectfully remind you that under Article 6 the last words are:

“Leaders, organizers, instigators, and accomplices participating
in the formulation or execution of a Common Plan or Conspiracy
to commit any of the foregoing crimes are responsible for all
acts performed by any person in the execution of such a plan.”

Under the Charter, in my respectful submission, that is enough to make them responsible for the crimes.

THE TRIBUNAL (Mr. Biddle): Now only one other question. What do you contend was the function of the SA after the Röhm purge?

SIR DAVID MAXWELL-FYFE: The function was still to support all Nazi manifestations in the life of Germany. You remember that Dr. Löffler was careful to except—very frankly and fairly he excepted the 10th of November 1938. The SA—and I gave another example how they were formed in the Government General—we have also given examples, which I think you will find in my appendix, of the participation—limited participation, but still a participation—in the War Crimes and Crimes against Humanity.

But the main point of the SA after that time was to show that here were 3 million people who had come into the organization which had provided the force to bring the Nazis into power, and it had the forceful size needed to bring the Nazis into power in those days. They were then joined by 2½ million people, which brought their numbers up at that time very high. They went down again later on, but they were high in 1939, and they provided a great immoral force behind the Nazi Party. They provided strong support and were ready on all occasions; whenever a demonstration had to be staged, the SA were there to give their support. They were an essential instrument for maintaining the Nazi control over the German Reich.

THE TRIBUNAL (Mr. Biddle): I take it, then, that the function, in your opinion, did not change in substance after the purge? Would you say that?

SIR DAVID MAXWELL-FYFE: The aim did not change. It did not need to do half as much, because, of course, by the end of 1933 all the other political parties were broken. Part of the SA’s original task, as I think Dr. Löffler put it, had been to safeguard the Defendant Göring when he was making a speech—I should have put it that it was to prevent the other people from having a free run when they made speeches—and to deal with the clashes between the various groups. That was unnecessary, because all political opposition had been destroyed. Therefore they became rather—I forget the exact term—a sort of cheer leader or a collection of people who would always be ready to give vociferous support.

You must have heard, Your Honor, of the meetings coming over the wireless with regulated cheers. It became more supporting, rather than dealing with opposition, but essentially the aim was the same, to keep the grip.

THE PRESIDENT: Dr. Dix, it is now nearly quarter past 5. Do you think that this discussion can be closed this evening before 6 o’clock?

DR. RUDOLPH DIX (Counsel for Defendant Schacht): Mr. President, I believe I can finish in 5 minutes.

THE PRESIDENT: All right. Do the other prosecutors wish to add anything?

GEN. RUDENKO: I would like to make a few short remarks, Mr. President.

THE PRESIDENT: How long do you think you will be, General Rudenko?

GEN. RUDENKO: I think about 10 minutes; no more.

THE PRESIDENT: Does the French prosecutor wish to add anything?

THE TRIBUNAL (M. De Ribes): I have nothing to add.

THE PRESIDENT: Dr. Dix, what I really want to know is whether there is any prospect of our finishing this discussion tonight. General Rudenko wishes to speak for about 10 minutes, and if the defendant’s counsel—of course, you will understand that a discussion of this sort, an argument of this sort, cannot go on forever; and in the ordinary course one hears counsel on one side and counsel on the other side, and then a reply; one does not go on after that. Do you know how many of the defendants’ counsel want to speak?

DR. DIX: Mr. President, I know that.

THE PRESIDENT: I think probably the best thing would be if we were to adjourn now and to sit in open session tomorrow, and then we shall probably be able to conclude this argument in about an hour tomorrow. Do you agree with that, General Rudenko?

GEN. RUDENKO: I agree.

THE PRESIDENT: Do defendants’ counsel think we shall be able to conclude it in about an hour tomorrow morning?

[_Several counsel nodded assent._]

THE PRESIDENT: Very well; we will adjourn now and sit at 10 o’clock tomorrow morning.

[_The Tribunal adjourned until 2 March 1946 at 1000 hours._]

SEVENTY-SECOND DAY
Saturday, 2 March 1946

_Morning Session_

THE PRESIDENT: General Rudenko.

GEN. RUDENKO: Your Honors, permit me to make a few supplementary remarks concerning the criminal organizations, a problem to which the Tribunal has devoted much attention in the last few days.

I consider it essential, in the first instance, to clarify completely the legal aspect of this problem. There is in the Charter of the Tribunal a marked absence of any statement to the effect that the recognition of an organization as being of a criminal nature would automatically entail the bringing to trial and, further, the condemning of all the members of these organizations. On the contrary, the Charter contains a definite indication of an opposite nature. Article 10 of the Charter, repeatedly quoted at this Trial, states that the national courts have the right, though not the obligation, to bring to trial members of organizations declared as criminal. Consequently, the question of the problem of the trial and the punishment of individual members of criminal organizations lies exclusively within the scope of the national tribunals.

The legal sovereignty of every country that has adopted the Charter of the Tribunal is thus limited in one respect only: The national courts cannot deny the criminal character of an organization, once it has been declared to be criminal. The Tribunal can impose no further limitation on the legal sovereignty of the contracting parties.

Therefore, Justice Jackson has stated here—and with reason—that the recognition of an organization as being of a criminal nature and therefore automatically entailing the mass condemnation of all its members, is a mere figment of the imagination; I would add, that has not sprung from legal grounds but from some entirely different source.

It appears to me that this legal problem is also based on a definite misunderstanding. One of the Counsel for the Defense, Dr. Servatius, was speaking here of the legislative authority of the Tribunal. The authority of the International Military Tribunal, organized by four states in the interests of all freedom-loving peoples, is enormous; but, of course, this Tribunal, as a legal organization, does not and cannot possess any legislative authority. When solving the problem of the criminal character of an organization, the Tribunal is only exercising the right entrusted to it by the Charter, that is, to solve independently the question of the criminality of the organizations. Of course, the verdict of this Tribunal, when coming into force, acquires the value of a law, but that is the value attached to any of the verdicts of the courts once it has been delivered.

Counsel for the Defense Kubuschok has stated here that the decision of the Charter with regard to the criminal organizations is a legal innovation. This, to a certain extent, is true. The innovation consists in the Charter of the International Military Tribunal and all its articles, whose creation, _per se_, is an innovation in the first instance. But should the Defense consider it possible to deplore this fact, I would consider it opportune to remind them of the causes of these legal innovations.

The very evil deeds committed by the defendants and their associates, deeds hitherto unknown in the history of mankind, have, of necessity, imposed new legislative measures for protecting the peace, the liberty, and the lives of the nations against criminal attempts. Moreover, the states which created this Tribunal and all peace-loving people remain invariably faithful to the ideals of law and to the principles of justice. Therefore, responsibility for participation in criminal organizations will be established only when personal guilt has been proved. In reality, the national courts will decide the problems of individual responsibility.

A few words now on the tactical side of the problem: It has been stated here that several detachments of the SS did not follow any criminal objective. It is difficult, Your Honors, to find within the fascist machinery neutral organizations which did not follow criminal objectives. Thus, the Defense Counsel for the SS, Mr. Babel, mentioned the existence of a research department for dog breeding within the SS. It would appear that this was an organization of general utility. It seems, however, that the learned dog breeders in this organization were engaged in training hounds to attack human beings and to tear their appointed victims to pieces. Can we isolate these dog breeders from the SS?

In Danzig another scientific research institute was engaged in the preparation of soap from human fat. Perhaps we should exonerate these soap boilers as well from all criminal responsibility?

At this point two practical suggestions have been put forward by the Defense Counsel: The isolation, as a separate activity, of the case of the criminal organizations and the establishment in the various camps of a Defense organization having as its purpose the collection of information and evidence. In practice, however, both proposals would create insoluble difficulties for the Tribunal in the execution of the immense task imposed upon it by the nations.

This task is precisely formulated in the Charter which instructs the Tribunal to solve the problem of the investigation of concrete facts concerning members of these organizations. Therefore an appeal to the Tribunal to isolate and consider the case of the criminal organizations as an independent activity is tantamount to an appeal to the Tribunal to infringe the articles of the Charter.

Article 9 of the Charter decides the problem of the criminal organizations when investigating the case of any one particular member, but it also has one other meaning for the Trial. It shows, as I have already mentioned, that the fact on which the statements and the solution of the question of the criminality of the organization are based is the presence in the dock of the accused representatives from the corresponding organizations. As is known, in the present case all the organizations which the Prosecution suggests should be considered as criminal are represented in the dock.

There is evidence in this case which amply suffices to admit the criminality of these organizations. Therefore the calling of special witnesses, capable of giving evidence on these organizations, can appear only as a supplementary source of evidence. I am bringing these matters to a close, Your Honors, and in closing I cannot omit one argument of the Defense. It was stated here by the Defense that as a result of the admission of the criminality of these organizations millions of Germans, members of these organizations, would be brought to trial. Together with my colleagues of the Prosecution I am not of this opinion, but there is something more I would like to say.

By this reference to hypothetical millions the Defense is attempting to hinder the progress of justice. However, before us, the representatives of the nations who have borne the burden and the suffering of the struggle against Hitlerite aggression, before the conscience and consciousness of all freedom-loving people, appear other figures, other millions of victims irrevocably lost, tortured to death in Treblinka, Auschwitz, Dachau, Buchenwald, Maidanek and Kiev. It is our duty to spare no effort to crush the criminal system directed by the fascist organizations against humanity. Your Honors, the extent of the crimes committed by the Hitlerite brigands cannot be imagined. However, we are not blinded by sentiments of revenge and have no intention of destroying the entire German people in retaliation. But justice does not permit us to swerve and thus give free play to the committing of new crimes.

We are deeply convinced that the Tribunal will unswervingly follow the path towards a just and rapid verdict and that it will, in full measure, chastise those whose crimes have shattered the earth.

THE TRIBUNAL (Mr. Biddle): General Rudenko, may I ask you a few questions?

General Rudenko, you remember that Mr. Justice Jackson suggested certain tests that we should use before we found an organization criminal, whether the tasks and the purpose of the organization were open and notorious, in order to show that the members knew what they were doing.

Now, if we find that any organization is criminal we would necessarily find, I presume, on that test, that its actions were open and notorious. Now, if a member of that organization found to be criminal was then tried by one of the national courts, I suppose under that finding he would not have any right to show that he did not know about it, because we would have found that the knowledge was so open and notorious that he must have known, so he could not raise as a defense that he had no knowledge of the criminal acts, could he?

GEN. RUDENKO: That is quite true. But we are bearing in mind the fact that the national courts investigating the problem of the individual responsibility of individual members of the organizations will, of course, proceed from the principle of individual guilt, since, naturally, we cannot exclude the possibility that in the organization of the SA, which fundamentally and in an overwhelming majority was aware of its criminal purpose, there might yet be individual members who might have been lured into the organization, either by deception or by some other reasons, and have been unaware of its criminal purpose.

THE TRIBUNAL (Mr. Biddle): But that would not be any defense to him, would it? He could not say he had no knowledge, because we would have already found that the knowledge was so open and notorious that he must have known.

GEN. RUDENKO: Why? I personally proceed from the standpoint that if the national court investigates the case of members who plead ignorance of the criminal purpose of the organization to which they belonged, the national court must examine these arguments submitted in their defense and estimate them accordingly.

THE TRIBUNAL (Mr. Biddle): How could they consider that, if we make a rule that the activities of the organization are so notorious that he must have known? How can he then say he did not know?

GEN. RUDENKO: I still maintain the point of view, and I still interpret and understand the Charter to mean that the judgment of the International Military Tribunal should determine and decide the question of the criminal character of the organizations, but where the question of individual responsibility and guilt of every member of this organization is concerned, the decision falls exclusively within the competence of the national courts. It is therefore extremely difficult to foresee all the possible individual cases and the eventualities which might arise when investigating a category of individual defendants.

You yesterday submitted a question to Sir David Maxwell-Fyfe concerning a member of the SA who had joined the organization in 1921 and left a year later. These, of course, are special cases and I cannot state how numerous they are; they are unavoidable, and when we come to the question of the extent of his information, the reasons for his entering and the reasons for his leaving this organization, when we come to estimate the value of his actions, it seems to me that it should be done by a national court which will examine the findings of the defense and appreciate them accordingly.

THE TRIBUNAL (Mr. Biddle): Can you say now what defense he would have before the national court, except the defense that he was never a member? Does he have any other defenses so far as we know? Does the Law Number 10 permit him any other defenses?

GEN. RUDENKO: It is difficult for me, at the present moment, to say what arguments the members of these organizations may put forward, for were I to speak, it would be on assumption. But I, for instance, consider, that the argument produced—if produced—which might be considered sufficient to exonerate this member of the organization would be that he had been coerced into joining.

THE TRIBUNAL (Mr. Biddle): May I ask you two more questions.

You used the expression that any evidence given by the defendants would be merely supplementary. That expression is not known to our law, and I would be very interested in your telling us what you meant by supplementary evidence. I do not know what the term means.

GEN. RUDENKO: I did not put it that way. This is perhaps an inaccuracy of translation. What I did say, speaking of questions connected with further investigations of the matter of the criminal organizations, was that this investigation should be carried out together with the investigation of the case of any one member of this organization, inasmuch as representatives of those criminal institutions are now in the dock. But I do say that this is already conclusive material for the recognition, or the denial, of the criminal nature of this organization.

But the Tribunal can, of course, consider this evidence as inadequate, or, shall we say, the Defense may consider that further supplementary evidence may be needed. In this connection, I consider that the calling of witnesses capable of submitting special evidence on the problem of the criminal or non-criminal character of these organizations may be presented to the Tribunal as supplementary evidence.

THE TRIBUNAL (Mr. Biddle): One other question on the SA, which I asked Sir David yesterday.

What do you consider was the function of the SA after the Röhm Purge, or, to put it a little differently, what criminal act do you believe the SA was engaged in?

GEN. RUDENKO: I consider that the SA after the Röhm incident committed the same criminal acts as the other organizations of Hitlerite Germany. I wish in confirmation of this evidence to refer to facts like the seizure of the Sudeten territory. As is well known, detachments of the SA played an active part in this affair.

All the subsequent events which occurred in Germany in connection with the Jews and, later, in the territories seized by Germany—Czechoslovakia and others—these criminal events took place with the connivance of this organization—the SA.

THE TRIBUNAL (Mr. Biddle): Thank you.

THE PRESIDENT: Does the Prosecutor for the French Republic wish to say anything?

THE FRENCH PROSECUTOR: No.

DR. DIX: I have, as counsel for the Defendant Schacht, an indirect interest in the question of the criminality of the group Reich Cabinet (Reichsregierung) because Schacht was a member of the Reich Cabinet. I want to point out, however, at the very beginning that I do not want to make detailed statements now either of a legal nature or in regard to the facts of the case. I shall do that rather at the time of my concluding speech.

What I want and seek now, and for which I ask the support of the Tribunal, is a clarification and amplification of those answers which Mr. Justice Jackson and Sir David Maxwell-Fyfe gave yesterday to your questions, Mr. Biddle.

I should like to point out that it is, of course, clear to me that I have no right to ask any questions of the members of the Prosecution. Formally speaking, I could at the most ask the Tribunal to supplement the questions which were put yesterday by the Tribunal. I believe, however, that this formal objection has no practical significance, because I am convinced that Sir David, who will see the pertinence of my request to have his answer extended, will be prepared to amplify the answer given to the question by Mr. Biddle without discussing the theoretical question, whether he is under any obligation to do so.

Sir David Maxwell-Fyfe was asked yesterday whether he considers the Reichsregierung, that is to say, the Reich Cabinet, as it was composed on 30 January 1933, in view of the then relatively small number of National Socialist cabinet members, criminal even at that time and if so, whether he is of the opinion that this hypothetic criminal character was at that time discernible to other people.

Sir David answered this question of Mr. Biddle’s in the affirmative and based this answer (1) on the contents of the Party program and (2) on the fact that already at that time the Leadership Principle had been set forth in the program.

I should like to ask if Sir David would supplement his answers along the following lines: Does Sir David really mean to say that the Leadership Principle as such, that is to say, purely as an abstract theory, is not only to be rejected politically or for other reasons but is also to be considered criminal? I want to make it understood that I am speaking about the abstract principle, without considering any factual developments in the ensuing period of time.

Concerning his second answer, that the Party program occasions him to declare that even at that time the Reich Cabinet is to be considered criminal and was recognizable as such, this answer—not directly in response to Mr. Biddle’s first question put in the course of further questions addressed to him by the Tribunal—he added to and substantiated by declaring that the aim expressed in the Party program of eliminating the Treaty of Versailles and the announcement therein of the desire for the annexation of Austria were the criminal points in this program.

May I ask Sir David to state, first, whether these two points of the Party program, that is to say, the abrogation of the Treaty of Versailles and the Anschluss, were with the exception of the Leadership Principle, the only points of the Party program which caused him to consider that program criminal, that is, to consider a government criminal which knew that program? Secondly, I should like to ask whether he really wants to put forward the opinion that an attempt to attain a revision or an abrogation in a peaceful fashion, that is, by way of negotiations, of a treaty found to be oppressive, very oppressive, by a nation, can be considered criminal.

Furthermore, I should like to ask him to state whether, considering the great democratic principle of the right of self-determination of nations and considering the history of the annexation movement in Austria itself—and I remind him of the plebiscite of 1919 when this Anschluss was demanded by, one may safely say, 100 percent of the Austrian population—he as a politician would consider a political party or a political program criminal which aimed at reaching this goal in a peaceful fashion. And here I should like to stress, again in order not to be misunderstood, that the later development and everything which actually happened and anything which might not have happened in accordance with the Party program is to be left out of consideration and only the Party program as such taken into consideration. Upon that, of course, the sense of his answer depended when he said, “Yes, the Party program is the basis of the criminal character.”

Now, finally, to come to the end, it would be consistent with the logical course of my explanations, to wait until Sir David has decided on this question, an answer to which I should like to request from Sir David and also from Mr. Justice Jackson, who is not here today. . .

THE PRESIDENT: [_Interposing._] Dr. Dix, the Tribunal will, of course, consider anything that you have said insofar as it refers to matters of principle, but they do not think that this is the proper time for Counsel for the Defense to pose questions to counsel for the Prosecution. The matter has already been fully dealt with, and the Tribunal do not propose to ask any further questions of the Prosecution unless the Prosecution wish to say anything in answer to what you have to say.

DR. DIX: Your Lordship, that was what I took the liberty of saying at the beginning. I realize that it is Sir David’s free will and decision as to whether he cares to comply with my request to add to his answer to the questions posed by Mr. Justice Jackson. That I have to leave to him.

I have only a short question, which is intended to prevent our misunderstanding each other. It is always well not to be misunderstood.

I remember—but I may be mistaken, and that is why I wish to ask Sir David what Mr. Justice Jackson declared as his opinion—that he did not consider the Party program, as such, criminal. As I have said, this is what I remember. I did not take any notes on it, because it did not strike me particularly at that time, since I considered it self-evident. Therefore I may be mistaken. But if my memory is correct, I should like to ask Sir David to state whether there is any uniform attitude on the part of the Prosecution toward this point.

THE PRESIDENT: Dr. Dix, the Tribunal asked the Prosecution to present their arguments in principle on the question of these organizations, and they wished also to hear counsel for the organizations in order that these matters should be cleared up, with a view to any possible evidence which might have to be given. They have heard counsel for all four prosecutors. They have asked them questions which they thought right to ask them in order to clear up any points. They have heard counsel for all the organizations and they have heard Counsel for the Prosecution in reply. They do not propose to ask any further questions of the Prosecution at this stage. Of course Counsel for the Prosecution and Counsel for the Defense will be fully heard at a later stage.

DR. DIX: I have come to the end of my statement. I leave it to the Court and Sir David as to whether he wants to answer these questions now.

DR. SEIDL: Mr. President, I should like to give a short explanation to the question as to which of the indicted organizations, the Defendant Frank belonged. Is that possible at this moment?

THE PRESIDENT: Dr. Seidl, the Tribunal do not think this is an appropriate time for any of the counsel for individual defendants to go into matters connected with the charges against the organizations. They will, of course, be heard in the course of their own defense, but this is not the appropriate time. This is only a preliminary discussion for the purpose of clarifying the issues which relate to the organizations.

DR. SEIDL: Yes, but I should like to use this opportunity to clarify a mistake which slipped in the day before yesterday. The day before yesterday I protested against the statement that the Defendant Frank was a member of the SS and this seems to have been translated incorrectly.

THE PRESIDENT: But Dr. Seidl, won’t it appear in the shorthand notes? You have not seen the shorthand notes yet?

DR. SEIDL: I have not seen the transcript yet, but I believe that by error “SS” was translated as “SA.” The Defendant Frank has never denied that he was an SA Obergruppenführer. What I wanted to point out is only that the statement in the Indictment that he was an SS general is not correct and also that the statement in Annex B about the nature of the criminal element is not pertinent, because it is said there that he was an SS general. But I attach importance to the fact that the Defendant Frank has never denied that he was an SA Obergruppenführer.

THE PRESIDENT: Very well, but you will have an opportunity to develop the whole case of Frank when your turn comes.

DR. SEIDL: Yes, but the question is merely this, as to whether the Defendant Frank was a member of the SS or not. As long as the Prosecution do not present any definite proof of the membership of the Defendant Frank in the SS, I have to contradict this statement. I do not believe that it is the task of the Defense to prove that the Defendant Frank was not a member of the SS. I am convinced that, on the other hand, this is one of the tasks of the Prosecution.

THE PRESIDENT: Very well; I have heard what you said.

DR. SERVATIUS: Dr. Servatius, for the Leadership Corps. . .

THE PRESIDENT: Dr. Servatius, the Tribunal are prepared to hear counsel for the organizations very shortly in the rebuttal, but only very shortly, as otherwise we may go on interminably.

DR. SERVATIUS: I do not want to make a speech, but merely to speak for about 5 minutes, in order to define my attitude towards a few matters of evidence. First, I have two questions to ask concerning the limitation of the proceedings to certain groups of members. I should be grateful if the Prosecution could give a statement as to whether the exception of certain parts of the organizations, as has taken place, is a final one or whether other procedures and steps are being held in reserve. This was stated originally in reference to the Leadership Corps. Concerning the limitation of the proceedings to certain groups of members in reference to the Leadership Corps, I do not wish to make any further motion inasmuch as that limitation has already been effected. I should be glad, however, if a decision could still be reached concerning the women. The female technical aides who were employed in the offices cannot, in my opinion, be included in the staffs. At any rate, they do not belong to the Leadership Corps, although they worked with the staffs. These women themselves are of this opinion, and also the officers in the camps shared this opinion. Accordingly not a single application for leave to be heard has been made by any woman in the British zone.

I presume it is known that women, as a matter of principle, were kept away from politics in the National Socialist State; and therefore, they can hardly be connected with the crimes stated in Article 6.

Now I should like to speak about two points concerning questions of evidence. As every profession creates the tools which it needs, so the jurist creates concepts to solve his problems. These concepts are not created for their own sake; thus the concept of the criminal organization shall serve to call guilty persons to account who would otherwise possibly evade this responsibility of theirs. In establishing the Charter the procedure was this, that one did away with the traditional structure of the state in order to reach the individual organs. But in order to be able to seize these organs, one brought them together again through the concept of the guilt of conspiracy. In this way, however, only a relatively small circle can be reached, since its members would have to be bound to each other by means of an agreement. In order to enlarge this circle by means of legal technique, the concept of a criminal group or organization was created. This organization is involved in the agreement of conspiracy only at the very top, while the members automatically, without their own knowledge, are included in the conspiracy. Such a definition of the concept of a criminal organization is justifiable only insofar as it is useful in getting hold of the really guilty persons and only the guilty ones.

In order to define the limits of this concept, I should like to discuss two further points concerning the determination of guilt and therefore necessarily relevant to the question of admissibility of evidence. First, there is the question of the members’ lack of knowledge of this criminality—the lack of knowledge resulting from secrecy—and then the attitude of the members after they had recognized the offenses being committed. In my opinion, the examination of guilt cannot be dismissed by pointing to the alleged knowledge of foreign countries about the real conditions. In foreign countries a propaganda was effective which exaggeratedly brought these things to light. In Germany all these facts remained secret, since because of their very nature they had to be secret—for instance, what was going on in the extermination camps—and because they had to be kept secret for political reasons. Moreover, the things which have become known here were so unimaginable that even in Germany one could not have believed them, had they become known during the war. It must be relevant to determine not whether a single individual member had no knowledge, but that 99 percent of the individual members acted in good faith. In this case, the organization is not criminal, but there could have been a criminal in it. If this is determined, then the legal construction of the criminal organization is superfluous and thereby false. The legal concepts existing until now will then be sufficient for bringing the guilty to trial.

The next viewpoint: The criminal nature or the criminal character of which the Charter speaks shows that that must be something which concerns the entire organization, and that it must be a continuous state of affairs. Individual acts which were rejected as wrong by the organization or the overwhelming majority of its members cannot establish the criminal character of the organization. The attitude of all the members to the incriminating acts is therefore of decisive importance and thus of evidentiary relevancy.

We do not need the concept of the criminal organization in order to punish individual criminals whose acts were rejected by the majority. Among such individual cases, in organizations which comprise millions of members, there may be cases in which smaller or even larger groups or merely certain local districts took part.

I believe that it is really a major task of the Tribunal to define, with the objectivity of the judge, the nature of this guilt as applied to the entire organization. I am of the opinion that the points I have mentioned, the secrecy of these facts and the attitude of the members after gaining knowledge, must form the basis for the collecting of evidence.

THE TRIBUNAL (Mr. Biddle): I want to ask some questions.

Dr. Servatius, I would like to ask you—and I will ask other counsel for the organizations—whether in general you accept the definition of criminal organizations suggested by Mr. Justice Jackson, which is found on Pages 19 and 20 of his statement? You will remember that he made five general tests. Now, in order to determine what evidence should be taken, we must determine what is relevant. Now, the test of what is relevant depends on a general definition of what is common to all organizations for that purpose. Now, do you or could you now say whether in a general way you accept those tests for the purpose of taking evidence?

DR. SERVATIUS: I have not yet thought about that and have not had a chance to discuss it with my colleagues. I should be grateful if we would be given such an opportunity. Perhaps this afternoon a representative of the Defense Counsel for the organizations could report to the Court about this.

THE TRIBUNAL (Mr. Biddle): Let me ask you another question. What, in your mind, are the tests that should be applied for the purpose of taking evidence?

DR. SERVATIUS: I did not quite understand the question.

THE TRIBUNAL (Mr. Biddle): I said that Mr. Justice Jackson had suggested a definition from which the relevancy of certain evidence could be established. Now, have you got any suggestion to offer for that same purpose?

DR. SERVATIUS: I should not like to commit myself without having spoken to my colleagues. It is a question of great importance which I should not like to deal with by myself.

THE TRIBUNAL (Mr. Biddle): Yes, but it is the basis of this entire argument. The very purpose of the argument was to develop that.

DR. KUBUSCHOK: In the course of yesterday’s debate the problem was discussed as to whether the task set before the Tribunal by the Charter can be considered a legislative act. The question was brought up as to whether, if we answer the preliminary question in the affirmative, the Court has the possibility of giving any binding instructions to the national court which has to try individuals, according to Law Number 10. That concerns, above all, the extent of the examination of the guilt of the individual member and the limitation of the scope of punishment for minor cases. I believe that if we follow up this deliberation we shall be led from a play upon words into a labyrinth when it comes to the practical application. Actually the task given the Court is not a legislative act. It is not a procedural innovation, if the national court in subsequent proceedings is bound by the previous decision of this Tribunal. Such cases are quite plausible and legally admissible. If elsewhere in criminal procedure a criminal court is bound by a previous decision, say of an administrative court, we consider these cases quite in order and unobjectionable. Likewise a criminal court could, for instance, be bound in judging a case of embezzlement to wait for the previous decision of the civil court as to whether the object embezzled was the property of somebody else.

Here, too, nobody would think that the civil judge was undertaking an act of legislation. That another court’s decision is binding on the criminal court and is the premise for its sentence does not in any way mean that the author of the criminal code has not completed his legislative task and that this has now to be done by the court which takes the preceding decision. In my opinion we therefore do not have to consider this point any further, for Article 9, Paragraph 1, of the Charter demands of the Tribunal a clear and unequivocal decision of the question whether the organization is criminal or not.