from common usage When explaining this concept common sense should be use According to common usage the Group is a numerically small community of per For 15-20 persons we speak of a Group, not, however, for larger unions. There is some talk about the fast that Groups were formed within a party or within an association. The Group is part of the Organization according to common usage. The Group, therefore, is the subordinate concept of the Organization. man Supreme Court of the Reich of 8 May 1922. In this resolution it has been said that a Group, having made it its task to pursue a definite individual aim, may be singled out from the members of a large majority of persons who pursue some other general aims. This may occur particularly if the large majority of persons pursue approved aims with approved means : part of the members, however -- perhaps without the others being informed of it-- united themselves for activities which ter to further the general aims in a prohibitive way.
Article 9 of the Charter; therefore, might be explained as follow : We can declare as criminal : 1) an Organization or 2) a Group as part of an Organization of it had been part of the SS. This, however, at it has already been stated is not the case.
Result: Since 1934 the SD was not part of the SS as an Organization Group according to Article 9 of the Charter.
I come to a further question : they two separate Organizations according to the Charter. collective general purpose. This held good for the time after 1939 when themselves Offices III and VI belonged to the Reich Security Main Office (RSHA), as well as for the period prior to 1939, when they were united in the SD Main Office.
Office I was the Home Intelligence Service, Office VI the Intelligence Service Abroad.
On the basis of the presentation of evidence it can be 26 Aug A LJG 21-1a Daniels considered as proved that the aims, tasks, activities and methods of offices III and VI in the Reichsecurity Main Office does not suffice to prove a recognizable connection between both agencies, and that they both have a general task in Common.
Office IV and the Criminal police, Office V, also belonged to the Reich Security Main Office. The Gestapo is rightly considered by the Prosecution as an independent organization and has been charged as such. The Prosecution has evidently the same opinion regarding the criminal police, against which no charge was made. Just as little as the Gestapo and the Criminal Police have lost of their character as independent organizations, as little could the fusion of office III and VI create a recognizable fusion and common general task for both these offices. The Reich Security Main Office was only the designation of an Administrative Agency.
I refer here to a statement made by the witness Best: The SD, therefore, was no uniform organization within the meaning of the Charter, but Offices III and VI could only have been two separate organizations had the presupposition of voluntary membership been accepted. necessary for each member to be a voluntary one. The Prosecution considers it unimportant if a small part or small percentage did not join it voluntarily. point does not tally with German jurisdiction. In a judgment in 1928, the German National Court required for a society, which corresponds to the Charter's concept of an organization, the voluntary, contractual reunion of all members. can be considered as existent when a small percentage of the members did not belong to the society on the basis of a voluntary contractual reunion, because such is not the case with the SD.
War the membership of a considerable portion of the members of 26 Aug A LJG 21-2a Daniels the SD was not voluntary but was based on a legal ordinance, either on compulsory service or emergency service.
I refer to the deposition of the witness Hooppner, who revealed that during the War an estimated 50 to 60% of the members belonged to the SD by virtue of a legal ordinance. disclose on an average the same percentages for the most widely different services. 3) I, moreover, refer to the collective list of affidavits submitted by me on the subject. emergency service were based since 1939 are to be found in Document SD 65-69, submitted by me. I especially refer in this respect to Document SD 65, reproducing the circular of 16 October 1940, in the text of that of 1 July 1942. It is expressly stipulated in this circular that as emergency headquarters the SD commands can demand that replacements and reinforcements be put in readiness for them. those who joined the SD voluntarily. the Prosecution that membership of the SD was voluntary. brought forward by the Prosecution, Offices II and VI cannot, for the time of war, be considered as organizations as conceived by the Charter. for the group as part of the organization, the factual features of the organization, including free will, are necessary.
1) Until 1934 or therabouts, the SD was part of the SS.
2) In the period from 1934 to 1939, the Home Intelligence and the Foreign Intelligence were separate organizations.
3) During the time after 1939, they were not organizations or groups in the sense of the Charter because the membership of 26 Aug A LJG 21-3a Daniels a large part of the members was based on legal ordinance.
Consequently, for this reason alone, Offices III and VI cannot, since 1939, be declared to be criminal organization.
must have to be called criminal.
1. The Prosecution has submitted that the organization
a) must pursue a purpose which according to the definition of Article 6 of the Charter is punishable, or
b) pursue legitimate purposes through means which, according to Article 6, are liable to punishment. guilt of the members must be established. This means the members must have known that the organizations pursued goals termed punishable according to Article 6. can be declared criminal also when not all of its members knew about the punishable purposes.
Professor Dr. Exner established in detail and convincingly, in his final pleadings for the defendant Jodl, that the action per se is not a crime but that guilt must be there also. Without guilt no punishment. Going further, Professor Dr. Exner has established that this principle can also be found in foreign decisions. I refer to the statement made by Dr. Exner, and I wish to point to the American law of 28 June 1940, previously mentioned, which the Prosecution cited as an illustration of the fact that organizations can be declared criminal. This law demands explicitly the knowledge of illegitimate goals. cannot be convicted by penal law unless it can be proven that guilty intent some of the members is sufficient for sentencing the organization could be uphold if the language of law No. 10 were different, in other words if by reason of law No. 10 an investigation were provided to determine whether the individual member had knowledge of the incriminating goals and activities of the organization.
This is not the case,however. Law No. 10 provides conviction of each member merely by reason of the fact that he belonged to an organization which has been declared criminal.
The members can no longer argue in subsequent proceedings that they did not know of the criminal goals and purposes. The opinion held by the Prosecution would thus mean that in subsequent proceedings persons will be convicted who had no knowledge of the criminal goals or activities. This would be contrary to the fundamental principle known to penal law in the entire world -- previously referred to by me -- according to which the proof of objective facts is insufficient for conviction and that the presence of guilt must also be proven. In view of this and since subsequent proceedings will not deal with the intent of guilt, it is imperative that the guilt of all members be established in this trial before the International military Tribunal. Only to the extent that this guilt has been established could the organization, or individual groups as a part of the organization, be declared criminal.
2) The intent of guilt also includes cognition of illegality. Also in this respect I should like to refer to Prof. Dr. Exner's argument whereby he established convincingly that every serious crime -- and only serious crimes are being tried here -- does not presuppose the cognition that something punishable is being done but does presuppose the knowledge that it is a crime to act in that manner; that the perpetrator must be cognizant of the fact that he commits an infraction of law, or that he is acting in a manner considered naturally wrong. Prof. Dr. Exner also has established that these principles prevail not only in the German penal law, but he also cited a number of examples from the English law. the goals or methods of the organizations, which would correspond to the facts with which Article 6 is dealing, but the members must also have been aware that these goals or these methods are illegal or in any case contrary to law. In that connection, on the other hand, the question arises whether this cognizance must have been present in all members or whether knowledge in some of them is sufficient. Because -- for reasons which I already explained -- only he is liable to punishment who was conscious of the illegality and because this consciousness can no more be examined in subsequent proceedings it must be established in these proceedings for all members for otherwise those members night be punished by virtue of Law No. 10 who did not have this consciousness.
To renounce the factual criterion of the cognizance of illegality would mean that the demands made on the ordinary members are unduly high. The cognizance of illegality may be absent even in the case where a perpetrator executes an order given him. order as a general reason for exclusion from punishment; but it is possible for an order to exclude the cognizance of illegality in the individual case. He who has recognized the illegality of his action cannot, according to Article 8, justify himself through reference to an order. legal by virtue of an order given him must be exonerated. Provisions of Article 8 of the Charter can have only this meaning and this interpretation. The question whether appeal by virtue of an order received from superiors furnishes ground for exoneration is not left uncontested in international literature. Article 8 of the Charter ruled on this controversial question that the perpetrator cannot make appeal because of an order obeyed. This explains why I did not discuss this controversial question in greater detail.
All authors, however, who deal with this question, presuppose that the subordinate has known that the order was illegal and unjust. They deal only with the question as to whether the subordinate, by knowing the illegality and unlawfulness of the order, had grounds for exemption from punishment. can also be founded on an order, the perpetrator is exempt from punishment. protect the execution of the deed which was obviously punishable. to cite an order as proof of the lack of illegality. if he lacked the knowledge of its illegality. If he, however, commits the same deed on the strength of an order, he would have to be punished, if one does not agree with my point of view. Such a misinterpretation would contradict the meaning and purpose of the Charter. and for this reason exclude the guilt. punishment who hascommitted crimes under the authoritative influence of other , i.e., not as a result of an unchecked and deliberate intention. relationsof society as, for instance, between subjects and the supreme power of the State and excuses obedience to the existing authority if bodily force is exercised or is immediately imminent.
Thus I arrive at the following result : 1) its purposes or expedients correspond with the facts of the case as 2) all members have known these purposes and expedients and 3) all members were conscious of the fact that these purposes were illegal This results gives rise to two further questions:
1. A legal one, whether the condemnation of an organization can be brought into harmony with the general rules of International Law and national law, 2. Factual one, whether the necessary elements of the case can be established at all for all members of the SD and whether a trial of this kin can be held at all. drawing the attention of the Tribunal to the fact that the stipulation in Article 9 was not a compulsory rule, but only an optional one. Even if the conditions are present for declaring an organization as criminal, the Court can refrain from doing this. It may be assumed that the legislators pursue a purpose in having prescribed the condemnation of the organizations as not Mandatory -even if all the conditions for this were fulfilled. It may be presumed that the legislators who promulgated the Charter wanted to submit Article 9 to examination under the rules of international law. judge's right of examination to the International Military Tribunal with regard to Article 9 - and I expressively emphasize, in order to avoid any misunderstandings, only with regard to Article 9, becuase in other respects the Charter is a mandatory rule. The International Military Tribunal should examine Article 9 to determine whether this rule is a further development of the legal concepts of international law and national laws, or whether it is in contradiction to these rules. The fact that Article 9 is a rule previously unknown in law should especially favor such an intention. The question as to whether a formal law is in contradiction to other laws, can be immediately locked over when the law is issued. This can only be determined in the course of the practical application of the law and after research by scholars. does not recognize the judge's right of examination. The Union of the Socialist-Soviet Republics does not recognize the judge's right of ex-mination either. In France the judge's right of examination is almost unanimously accpeted by legal scholars.
In the United States the judge's right of examination is generally recognized. been issued with the constitution, and to discover the true intentions of both laws. to the federal conditions of the United States, and that therefore the International Military Tribunal isjustified in examining the relationship of Article 9 of the statute to the generally recognized rules of International Law and also the law of the national states, which, according to the statements of Justice Jackson ape likewise to from the legal foundation of the decision. unknown to the previous laws. It can obviously be presumed and undoubtedly needs no further explanation, that the nations which promulgated the Charter wanted to develop further the basic concepts the prevailing of Interna tional law and bring it into a legal form, and that in doing so they completely lacked any intention of placing themselves in opposition to the rules of international law.
carefully and in a scholarly way, so that a reasonable application in practice will be possible. Only in tills way ere the Courts placed in a position to reach verdicts which aye really in accordance with the facts. judges right of examination to which it is entitled, will have to examine the relationship of Article 9 of the Charter with the general basic legal principles of international law and the national laws of civilized nations. of the assertion, permissible according to Article 9 of the Charter, that an organization can be criminal. Organizations. As, for example, it has been introduced into English law by Section 2 of the Interpretation Act of 1889; (Verl andsstrafrecht) is directed at the organization. According to Article 9, the sentence can no longer affect the organizations because the latter have been dissolved in the meantime, and no longer exist. The sentence is rather directed against the individual members, because the verdict of the Court is the basis for the subsequent proceedings on the basis of Law No. 10.
The further important differences must be added:
1) According to the Criminal Code for Organizations, and also according to the Organizational Criminal Code or Organizations of English law, in particular no imprisonment (Freiheitsstrafe) is permitted.
The sentence according to Art.9 ought to show nevertheless the basis for the inflicting of prison sentences and even of death sentence which are contained in Law No. 10.
2) According to the corporate criminal law of theEnglish law, no crimes and offences can be prosecuted. have been condemned only on account of excesses, especially on account of neglect of public obligations, e.g. failure to repair streets or bridges, although a similar obligation existed, blocking a street by a railway company, or on account of publishing a libel.
The subject matter of the proceedings of Art. 9 are on the other hand major crimes. of the corporate criminal law into the international criminal law. to which it should be permissible to declare an organization criminal: from the American Law, the law of 23 June 40 and the "California Act": from the English law the "British India Act No.30" of 14 November from the French law, the law of 18 December 1893, Section 263 of the French Penal Law Code, Section 1 of the Law of 26 August 44 and 2 legal decisions from the Russian law.
The following German laws were also cited:
1) The decisions of Art. 128, 129 of the German Legal Code Book of 1871,
2) The law of 22 Mar 21, RGB1. 1921, p.235.
3) The law of 21 July 22, RGB1. 1922, p. 585. these laws only individual persons may be prosecuted and that in the proceedings against the prosecuted individual persons it is without legal jurisdiction for the members not prosecuted and it thus cannot establish that the organization has a criminal character. It can be thereby established in proceedings against some members of the organization that the organization pursues aims contrary to law and in a subsequent proceedings against other members this question can be denied. members not prosecuted is nevertheless the decisive factor which differentiates these laws from Point 9 of the Charter. The decision according to point 9 of the Charter is, in contrast to the laws cited by the Prosecution, binding in the proceedings against the individual members before the military Tribunal, and indeed the sentencing of the organizations through the International Military Tribunal contains not only the effective confirmation of the objective facts in the case, but furthermore an effective confirmation of guilt for all the members, as well as consciousness of the violation of the law, i.e a legal efficacy of a hitherto completely new significance in penal law.
development of the corporate law, nor with the sentencing of individual persons because of the membership in a criminal community of persons, but with a judgment of collective members of the organizations, because the essential facts havebeen determined juridically for the collective members, which form, the basis for the later judgments in the proceedings according to Law No. 10, In the subsequent proceedings, the question of the membership can now be tested also. In other words: We are here concerned with the collective judgment of all members of the organization.
What is the attitude of international law scholars toward the question of collective condemnation. scholars reject collective condemnation as "arbitrary and contrary to the elementary principles of justice". The well-known teacher of international law Garner states rightly that collective condemnation, even if it is applied in the mildest form, necessarily includes the punishment of innocent persons. Garner further goes on to explain that for this reason collective condemnation should never be used, if ether just measures would serve the same purpose. The French legal scholars Bonfils and de Martens have condemned the basic principle of collective punishment in detailed discussions, and expressed the hope that collective condemnation would disappear altogether. stoned for. In order to achieve this aim, however, the indirect way of condemning the organizations is not necessary. This aim can be achieved by instituting proceedings against individual persons who participated in these crimes, as as also dore in a large number of cases. LAW AN THE NATIONAL LAW'S OF CIVILIZED STATES, therefore, use should be made of the optional rule of Article 9, and one should refrain from declaring the accused organizations as criminal. The persons responsible for the crimes can be punished in individual proceedings. establish in this trial the required factual characteristics.
To do so would appear impossible and not feasible. Even the proof that all members of SD were informed of some of the criminal goals would appear impracticable. The guilt can always be established for one person only. All guilt is bound to a person. If many persons participate in an offense or a crime the judge must examine the entire group of persons involved singly, in order to determine guilt, innocence, complicity in a concrete and well defined manner.
It seems entirely impossible, however, to determine that all members were cognizant of the illegality and unrighteousness of the goals and tasks.
for members of the SD to determine whether the goals or means were illegitimate or unrighteous. According to the German law in force while the organization wasin existence these goals and means were permitted, as I shall show in the section dealing with facts. It may be conceded that the German legal measures conflicted in part with the provisions of International Law and that therefore goal and methods - while not illegal according to the law of the German State and not wrong - can nevertheless be considered illegitimate and unrighteous according to the concepts of International Law. But this is not the decisive point. What counts is whether the members, that is all the members, have recognized the illegality and unrighteousness of goals and methods which were legitimate according to German Laws. the Law cannot demand that an individual can be punished for a deed which he was forced to commit in virtue of the law. right and wrong, can one demand from ordinary members of the Organizations that they recognize it? the annihilation of the Jews, and the unhuman treatment in the concentration camps, requires no discussion as to right or wrong. The organizations, however, are charged with a great number of punishable offenses, and the questions arises whether 1. the perpetrators generally and 2. furthermore all members, know of the injustice and the illegality, and can be answered in the affirmative without rare ado.
during the war were recognized as illegal and unjust. In peace time every body knows that he must not kill and that foreign property is inviolable.
These acts are however partly justifiable in wartime. The soldier can kill the enemy. The confiscation of foreign property is permitted under certain hypotheses. The individual who commits the deed and beyond him the members, have therefore, only the consciousness of illegal acts, which have been committed during the war, when they are aware of the limitations which are set by law.
A strict examination of these organizations is particularly neces-
26 Aug A LJG 23-1 Saslaw sary, because their members were for the most part men who had no juridical knowledge, and to whom the limitations of International Law are unknown. I believe that this is also the opinion of the Chief United States Prosecutor as described in his opening speech of 20 November 1945, how a soldier assigned to an execution squad could not hold an investigation as to whether the execution was
1) legally admissible. The transcript of page 42. of the mentens regarding the illegality and injustice the mistake should not be made, of assuming that the simle members of the organization had the knowledge, which we have gained in this process on the basis of documents coning from secret archives. of secret papers, documents and regulations were produced, which were only intended for the internal administration of individual offices. The content of those papers therefore testifies that they had not been brought to the knowledge of all members but only to a small determined circle. In this connection I wish to refer for example to the well-known document L 180, the Stahlecker. Report dealing with the activity of Task Group A. the evidence produced by the Prosecution does not suffice for the collective condemnation of the members of the SD. The documents do not even prove that the offenders themselves were conscio of illegality, because in order to establish this one must know the particular circumstances of the act. And it must still be proved that the members of the SD. a) know of those acts b) recognized that the acts were illegal or at least wrong. I do not consider it necessary to discuss this question in the second part of my statement regarding each act with which the SD was charged but in my opinion it is sufficient if I describe the problem in general and leave the examination in individual cases to the Tribunal.
In each individual case, however, with 26 Aug A LJG 23-2 Saslaw which the SD is charged and with each document submitted against the SD, the Tribunal will not be able to avoid this examination.
THE PRESIDENT: Would that be a convenient point to break off?
(The Tribunal adjourned until 27 august 1946, at 1000 hours.)
DR. LATERNSER: Mr. President, I should like to take two minutes of the High Tribunal's time. Yesterday after the conclusion of the interrogation Of the witness Schreiber I received a written report to the effect that, first of all, reserach work as far as bacteriology was concerned, that these research materials works were limited to defense, and that at the request of the military medical department beginning with autumn of 1943, all means were to be exhausted to the OKW and particularly through Field Marshal Keitel, that there was a rejection on their part, that this had be prohibited, and that this work was to be considered in no way. yesterday, a letter which I read last evening for the first time. These two points which I have just stressed can be proved by Col. Buerker of the General Staff who at present is interned in the camp at Dachau. Schreiber. I assume that this officer was that Colonel who was the presid of the secret session mentioned by the witness Schreiber. The witness is at Dachau, He could appear before this court tomorrow. The interrogation which I world like to carry on world take, at the most, twenty minutes, and I consider the bringing of this proof absolutely essential in the interested of-truth. I am now submitting my application in writing.
THE PRESIDENT: The Tribunal will consider your application. Perhaps the Tribunal ought to hear if the Prosecution have anything to say in answer to the application made by Dr. Laternser. The Tribunal would an like to see the report and the letter to which Dr. Laternser referred.
SIR MAXWELL FYFE: If My Lord will just allow no a moment until I see Col. Smirnov -