in one trial before the International Military Tribunal, and in that trial every accused organization must be defended by counsel and must be represented by at least one leading member, and other individuals may apply to be heard. Their applications may be granted if the Tribunal thinks justice requires it. The only issue in this trial concerns the collective criminality of the organization or group. It is to be adjudicated by what amounts to a declaratory judgment. It does not decree any punishment either against the organization or against individual members.
The only specification as to the effect of this Tribunal's declaration that an organisation is criminal is contained in Article 10, which, if you will bear with me, I will read:
"In cases where a group or organization is defendant criminal by the Tribunal, the competent national authority of any signatory shall have the right to bring individuals to trial for membership the man before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned." declared flatly that membership in any of these rared organizations is criminal and should be punished accordingly If there had been such an enactment, it would not have been open to an individual who was being tried for membership to contend that, the organization was rat in fact, criminal, The framers of the Charter, acting last summer, at a was before the evidence which has been adduced here was even available to us, did not care to find organizations criminal by fiat.
They loft that issue to determination after relevant facts were developed by adversary proceedings. Plainly, the individual is better off because of the procedure of the Charters, which leaves that finding of criminality to this body after hearings at which the organization must, and the individual may be represented. It is at least the best assurance that we could devise that no mistake would be made in dealing with these organizations. are not on trial in the conventional sense of that tern. They are more nearly under investigation as they might be before a Grand Jury in Angle-American practice. Article 9 recognizes a distinction between the declaration of a grow or organization as criminal and "the trial of any individual member thereof." The power of the Tribunal to try is confined to "persons," and the Charter does not expand that term by definition, as statutes sometimes do, to include other than natural persons. The groups or organizations named in the Indictment were not as entities served with process. The Tribunal is not empowered to impose any sentence upon them as entities. For example, it may not levy a fine upon them even though they have property of the organization, nor convict any person because of membership. proceedings against anyone. It provides only that the competent national authorities shall have the right to bring individuals to trial for membership therein. It was not deemed wise, on the information then available, that the Charter should regulate subsequent proceedings. Nor was it necessary to do so. There is a continuing legislative authority, representing all four signatory nations, competent to take over where the Charter leaves off. Legislative supplementation of the Charter, of course, would be necessary in any event, to confer jurisdiction on local courts, to define their procedures and to prescribe different penalties for different forms of activity.
Fear has been expressed, however, that the Charter's silence as to future proceedings means that great numbers of members will be rounded up and automatically punished as a result of a declaration that an organization to be criminal.
It also has been suggested that this is, or may be, the consequence of Article II, 1(d) of Control Council Act No. 10, which defines as criminal, "membership in categories of a criminal group or organization declared criminal by the International Military Tribunal." A purpose to inflict punishment without a right of hearing cannot be spelled out of the Charter, and would be offensive to both its letter and its spirit. And I do not find in Control Council Act No. 10 any inconsistency with the Charter. Of course, to reach all individual members would require numerous hearings. But they will involve only narrow issues; many persons will have no answers to charges if they are carefully prepared, and the proceedings should be expeditious, non-technical, held in the locality whore the person accused resides, and, incidentally, may be conducted in two languages at most. membership in a criminal organization, he is entitled to a hearing on the facts of his case, The Charter dose not authorize the national authorities to punish membership without hearing it gives them only the right to "bring individuals to trial". That means what it says. A trial means there is something to try.
The Charter denies only one of the possible defenses of an accused; he may not relatigate the question in a subsequent trial whether the organization itself was a criminal one, Nothing precludes him from derying that his participation was voluntary and proving he acted under duress; he may prove that he was deceived or tricked into membership; he may show that he had withdrawn or he may prove that his name on the rolls is a case of mistaken identity.
criminal, of course, implies a genuine membership involving the volition of the member. The act of affiliation with the organization must have been intentional and-voluntary. Legal compulsion or illegal duress, actual fraud or trick of which one is a victim has never been thought to be the victim's crime and such an unjust result is not to be implied now. The extent of the member's knowledge of the criminal character of the organization is, however, another matter. He may not have known on the day he joined but may have remained a member after learning the fact. And he is chargeable not only with what he knew but with all of which he reasonably was put on notice. good faith. Prosecution under this declaration is discretionary and if there were purpose on the part of the Allied Powers to punish without trial, it would have been already done before this Tribunal was set up, and without waiting for its declaration. We think the Tribunal will presume that signatory powers which have voluntarily submitted to this process will carry it out faithfully. declared criminal. This language on the part of the Control Council recognizes a power in this Tribunal to limit the effect of its declaration. I do not think, forreasons which I will later state, that this should be construed or availed of to try here any issues as to sub-groups or sections or individuals which can be tried in later proceedings. It should, I think, be construed to mean, not the sort of limitation which must be defined by evidence of details, but limitations of principle such as those I have already outlined, such as duress, involuntary membership, or matters of that kind, which the Tribunal can recognize and deal with without taking detailed evidence. It does not require this Tribunal to delve into evidence to condition its judgment, to apply only to intentional, voluntary membership. This does not supplant later trials but the declaration of this Tribunal guides them.
severance of the general issues common to many cases, from the particular issues applicable only to individual defendants for litigation in separate Tribunals specialty adapted to the different kinds of issues, is lacking in reasonableness or fair play. And while it presents unusual procedural difficulties, I do not think it presents any insurmountable ones. I will discuss the question of the criteria and the principles and the precedents for declaring collective criminality before coming to the procedural questions involved. organizations is, in its large outline, old and well settled and fairly uniform in all systems of law. It is true that we are dealing here with a procedure which would be easy to abuse and one often feared as an interference with liberty of assembly or as an imposition of guilt by association. It also is true that proceedings against organizations are closely akin to the conspiracy charge which is the great dragnet of the law, rightly watched by courts lost it be abused. necessary to treat some organizations as criminal. Not even the most tolerant of governments can permit an accumulation of private power in organizations to a point where it rivals, obstructs or dominates the government itself. T do so would be to grant designing men a liberty to destroy liberty. The very complacency and tolerance as well as the impotence of the Weimar Republic towards the growing organization of Nazi power spelled the death of German freedom.
Protection of the citizen's liberty has required even free governments to enact laws making criminal those aggregations of power which threaten to impose their will on unwilling citizens. Every one of the nations signatory to this Charter has laws making certain types of organizations criminal. The Klu Klux Klan in the United States flourished at about the same time as the Nazi movement in Germany. It appealed to the same hates, practiced the same extra-legal coercions, and likewise terrorized by the same sort of weird nighttime ceremonials. Like the Nazi Party it was composed of a core of fanatics, but it enlisted the support of respectabilities who knew it was wrong, but thought it was winning.
It eventually provoked a variety of legislative acts directed against such organizations, as organizations. outlawing certain organizations. A recent example was the Act of 28 June 1940, in which the Congress provided that it shall be unlawful for any person, among other things, to organize or help to organize any society, group, or assembly of persons to teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence, or to be or become a member of, or affiliate with, any such society, group or assembly of persons, knowing the purposes thereof. analogous offenses. An example is to be found in the act of California dealing with criminal syndicalism, which, after defining it, makes criminal any person who organizes, assists in organizing, or is or knowingly becomes a member of such organization. membership therein are old and consistent with the Charter.
One of the first, is the British India Act No. 30, enacted in 1836, which, among other things, provides:
"It is hereby enacted that whoever shall be proved to have belonged either before or after the passing of this Act to any gang of thugs either within or without the territories of the East India Company shall be punished with imprisonment for life with hard labor." violence. of 1799, the Seditious Meetings Act of 1817, the Seditious Meetings Act of 1846, the Public Order Act of 1936, and Defense Regulations 18 (b). The latter, not without opposition, was intended to protect the integrity of the British Government against fifth-column activities of this same Nazi conspiracy. criminal gang. Criminologists of the Soviet Union call this crime the "crime of banditry", a term altogether appropriate to these German organizations. General Rudenko will advise this Tribunal more in detail as to the Soviet Law. Membership of the criminal gang is a crime in itself. My distinguished French colleague will present you more detail on that. of the signatory powers, was governing here, but it is clear that this is not an act or a concept of a single system of law, that all systems of law agree that there are points at which organizations become intolerable in a free society. Nazi regime, which, of course, suppressed all their adversaries ruthlessly. However, under the Empire and the Weimar Republic, German jurisprudence deserved respect, and it presents both statutory and juridical examples of declaring organizations to be criminal. Statutory examples are:
The German Criminal Code enacted in 1871. Section 128 was aimed against secret associations, and 129 was directed against organizations inimical to the State. constitution of the Reich.
Section 128 of the Criminal Code of 1871 is especially pertinent. It reads:
"The participation in an organization, the existence, constitution, or purposes of which are to be kept secret from the Government, or in which obedience to unknown superiors or unconditional obedience to known superiors is pledged, is punishable by imprisonment." the organizations with which we are dealing here than this German Criminal Code of 1871. obedience to unknown superiors or unconditional obedience to known superiors is pledged. It is exactly the sort of danger and menace with which we are dealing. criminal prosecution. Under the Republic, in 1927 and 1928, judgments held criminal the entire Communist Party of Germany. In 1922 and 1928, judgments of the courts ran against the political Leadership Corps of the Communist Party, which included all of its so-called body of functionaries. This body of functionaries in that organization corresponded somewhat in their powers to the Leadership Corps of the Nazi Party which we have accused here. The judgment against the Communist Party rendered by the German Courts included every cashier, every employee, every delivery boy and messenger, and every district leader. In 1930 a judgment of criminality against what was called "The Union of Red Front Fighters" of the Communist Party made no distinction between leaders and ordinary members. judgment of the German Courts was rendered that the whole Nazi Party was a criminal organization. Evidently there was a lack of courage to enforce that judgment, or we might not have been here. This decision referred not only to the Leadership Corps, which we are indicting here, but to all other members as well. The whole rise of the Nazi Party to power was in the shadow of this judgment of illegality by the German courts themselves. the theory that all members were held together by a common plan in which each one participated even though at various levels. Moreover, fundamental principles of responsibility of members as stated by the German Supreme Court are strikingly like the principles that govern our Anglo-American law of conspiracy.
Among the statements by the German courts are these:
"It is a matter of indifference whether all the members pursued the forbidden aims. It is enough if a part exercised the forbidden activity."
And again: "It is a matter of indifference whether the members of the group or association agree with the aims, tasks, means of working and means of fighting."
And again: "The real attitude of mind of the participants is a matter of indifference. Even if they had the intention of not participating in criminal efforts, or hindering them, this cannot eliminate their responsibility from real membership." of criminal conspiracies, and their criminality is judged by application of conspiracy principles. The reason why they are offensive to law-governed people has been succinctly stated by an American legal authority as follows, and I quote from Miller on Criminal Law:
"The reason for finding criminal liability in case of a combination to effect an unlawful end or to use unlawful means, where none would exist, even though the act contemplated were actually committed by an individual, is that a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous, because of its increased power to do wrong, because it is more difficult to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the minds of people."
The Charter, in Article 6, provides that "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 persons in execution of such plan."
law of conspiracy.
of conspiracy which, if proved, makes them responsible for the acts of others in execution of the common plan. terms of "conspiracy" alone. The crimes were defined in non-technical but inclusive terms, and embraced formulating and executing a common plan, as well as participating in a conspiracy. It was feared that to do otherwise might import into the proceedings technical requirements and limitations which have grown up around the term "conspiracy". There are some divergences between the Anglo-American concept of a conspiracy and that of either French, Soviet, or German jurisprudence. It was desired that concrete cases be guided by the broader considerations inherent in the nature of the problem I have outlined, rather than to be controlled by refinements of any local law. there is no reason why every member of any Nazi organization accused here could not have been indicted and convicted as a part of the conspiracy under Article 6, even if the Charter hadnever mentioned organizations at all. To become voluntarily affiliated was an act of adherence to some common plan or purpose. groups; admittedly, their members were united for action. In the case of several of the Nazi organizations, the fact of confederation was evidenced by formal induction into membership, the taking of an oath, the wearing of a distinctive uniform, the submission to a discipline. That all members of each Nazi organization did combine under a common plan to achieve some end by combined efforts is abundantly established. obviously those which would test the legality of any combination or conspiracy. Did it contemplate illegal methods or purpose illegal ends? If so, the liability of each member of one of these Nazi organizations for the acts of every other member is not essentially different from the liability for conspiracy enforced in the courts of the United States against business men who combine in violation of the anti-trust laws, or of other defendants accused under narcotic drugs laws, sedition acts, or other Federal penal enactments.
and the United States in dealing with conspiracy are these sweeping principles:
No formal meeting or agreement is necessary. It is sufficient, although one performs one part and other persons other parts, if there be concert of action and working together understandingly with a common design to accomplish a common purpose. his fellow conspirators were or just what part they were to take or what acts they committed, and though he did not take personal part in them or was absent when criminal acts occurred. the particular acts were not intended or anticipated if they were done in execution of the common plan. One in effect makes a fellow-conspirator his agent with blanket authority to accomplish the ends of the conspiracy. Fourth, it is not necessary to Liability that, one be a member of a conspiracy at the same time as other actors, or at the time of criminal acts. When one becomes a party to a conspiracy, he adepts and ratifies what has gone before and remains responsible until he abandons the conspiracy with notice to his fellow conspirators. do without those defenses against the accumulation of power through aggregations of individuals mit, cries of course, are individually punishable for those crimes exactly as are these who commit the same offenses without organizational backing. The very essence of the crime of conspiracy or membership in a criminal association is liability for acts one did not personally commit, but which his acts facilitated or abetted. The crime is to combine with others and to participate in the unlawful common effort, however innocent the personal acts of the participants when considered by themselves.
conspiracy if the purpose of the latter is to advance a criminal plan.
And we have multitudinous examples in the jurisprudence of the United States where the mailing of a letter brought one not only within the orbit of the definition of crime, but within Federal jurisdiction. in the performance of a common purpose render one liable for the criminal acts of others performed to that same end. determining the criteria of guilt for organizations. Certainly the vicarious liability imposed in consequence of voluntary membership, formalized by oath, dedicated to a common organizational purpose and submission to a discipline and chain of command, cannot be less than that vicarious liability which follows from inforal cooperation with a nebulous group, as is sufficient in the case of conspiracy. every member, or every art, fraction, or division of the membership to be guilty of criminal acts. That suggestion ignores the conspiratorial nature of the charge against organizations. Such an interpretation also would reduce the Charter to an unworkable absurdity. To concentrate in one International Tribunal inquiries requiring such detailed evidence as to each member or as to each subsection would set a task not possible of completion within the lives of living men. as that "one should be convicted for his activities and not for his membership." But this ignores the fact that membership in Nazi bodies was an activity. It was not something passed out to a passive citizen like a handbill. Even a nominal membership may aid and abet a movement greatly. the front row of the Nazi Party Congress, which you have seen, wearing the insignia of the Party, was included in the propaganda films of the Nazi Party merely for artistic effect? This great bankers mere loan of his name to this shady enterprise gave it a life and a respectability in the eyes of every hesitating German.
There may be instances in which membership did not aid and abet the organizational ends and means, but individual situations of that Kind are for appraisal in the later hearings and not by this Tribunal.
simple, but at the same time fairly accurate outline of the contours of a conspiracy to do what the organization actually did. It is the only workable one at this stage of the trial. It can work no injustice because before any individual can be punished, he can submit the facts of his own case to further and more detailed judicial scrutiny. principles the burden of proof to justify a declaration of criminality is upon the prosecution. It is discharged, we think, when we establish the following.
1. The organization or group in question must be some aggregation of persons associated in identifiable relationship with a collective, general purpose.
2. While the Charter does not so declare, we think it implied that membership in such an organization must be generally voluntary. This does not require proof that every member was a volunteer. Nor does it mean that an organization is not to be considered voluntary if the defense proves that some minor fraction or small percentage of its membership was compelled to join. The test is a common-sense one: Was the organization on the whole one which persons were free to join or to stay out of? Membership is not made involuntary by the fact that it was good business or good polities to identify one's self with the movement. Any compulsion must be of the kind which the law normally recognizes and threats of political or economic retaliation would be of no consequence.
3. The aims of the organization must be criminal in that it was designed to perform acts denounced as crimes in Article 6 of the Charter. No other act would authorize conviction of an individual and no other act would authori conviction of the organization in connection with the conviction of the individual.
4. The criminal aims or methods of the organization must have been of such character that its membership in general may properly be charged with knowledge of them.
This again is not specifically required by the Charter.
Of course, it is not incumbent on the prosecution to establish the individual knowledge of every member of the organization or to rebut the possibility that some may have joined in ignorance of its true character.
5. Some individual defendant must have been a member of the organization and must be convicted of some act on the basis of which the organization was declared to be criminal. for trial before this Tribunal, and some discussion of those which seen to us not to be for trial before this Tribunal. issues to be tried. I have indicated what we consider to be proper criteria of guilt. There are also subjects which we think are not relevant before this Tribunal, some of which are mentioned in the specific questions asked by the Tribunal.
Only a single ultimate issue is before this Tribunal for decision. That is whether accused organizations properly may be characterized as criminal ones or as innocent ones. Nothing is relevant here that does not bear on a question that would be common to the case of every member. Any matter that would be exculpating for some members but not for all is, as we see it, irrelevant here. many members were conscripted if, in general, the membership was voluntary. It may be conceded that conscription is a good defense for an idividual charged with membership in a criminal organization, but an organization can have criminal purposes and commit criminal acts even if a portion of its membership consists of persons who were compelled to join it. The issue of conscription is not pertinent to this proceeding, but it is pertinent to the trials of individuals for membership in organizations declared to be criminal. members of the named organizations were ignorance of its criminal purposes or methods if its purposes or methods were open and notorious. An organization may have criminal purposes and commit criminal acts although one or many of its members were without personal knowledge thereof. It a person joined what he thought was a social club, but what in fact turned out to be a gang of cut-throats and murderers, his lack of knowledge would not exonerate the gang considered as a group, although it might possibly be a factor in extenuation of a charge of criminality brought against him for mere membership in the organization.
Even then, the test would be not what the man actually knew, but what, as a person of common understanding, he should have known. named organizations were themselves innocent of unlawful acts. This proposition is basic to the entire theory of the declaration of organizational criminality. The purpose of declaring criminality of organizations, as in every conspiracy charge, is their crimes and passed on.
Witnesses know that it was an SS man or a Gestapo man, but to identify him is impossible.
Any member guilty doing.
The purpose of this proceeding is not to reach instances of claimed by the Prosecution to have been criminal.
The Prosecution period stated in the Indictment.
We do not contend that the Tribunal period of time than that set forth in the Indictment.
The Indictment is specific as to each Organization.
We think that the record at this be excluded from the declaration of criminality.
It is, of course, Group or Organization.
The Tribunal, however, is not expected or required, to be bound by formalities of organization.
In framing the these fictions.
The concept of the Charter; therefore, is a non technical one.
"Group," or "Organization," should be given no artificial or sophistical meaning.
The word, "Group" was used in the or relationship than is implied in the term, "Organization."
The speech of the people.
The test to identify a Group or Organization Organizations is not an issue for trial here.
There is no Charter
THE PRESIDENT: Would this be a convenient time for you to break off?
MR. JUSTICE JACKSON: Yes, sir.
(A recess was taken.)
The Prosecution stands upon the language of the Indictment and contends that each group or organization should be declared criminal as an entity and that no inquiry should be entered upon and no evidence entertained as to the exculpation of any class or classes of persons within such descriptions.
Practical reasons of conserving the Tribunal's time combine with practical considerations for defendants. A single trial held in one city to deal with questions of excluding thousands of defendants living all over Germany could not be expected to do justice to each member unless it was expected to endure indefinitely. Provision for later, local trials of individual relationships protects the rights of members better then possibly can be done in proceedings before this Tribunal. colleagues, consents to exclude persons employed in purely clerical, stenographic, janitorial or similar unofficial routine tasks. As to the Nazi Leadership Corps we abide by the position taken at the time of submission of the evidence, that the following should be included: the Fuehrer, the Reichsleitung (i.e., the Reichsleiters, main departments and office holders), the Gauleiters and their staff officers, the Kreisleiters and their staff officers, the Ortsgruppenleiters, the Zellenleiters and the Blockleitcrs, but not members of the staff of the last three officials. expressly exclude (1) wearers of the SA Sports Badge; (2) SA controlled Home Guard Units, which were not, as we view it on the evidence, strictly part of the SA; and there also be excluded the National Socialist League for Disabled Veterans and the SA Reserve, so as to include only the active parts of that organization. severalability of any class or classes of persons within the organizations accused which would justify any further concessions and that no other part of the named groups should be excluded. In this connection, we would again stress the principles of conspiracy. The fact that a section of an organization itself committed no criminal act, or may have been occupied in technical or administrative functions, does not relieve that section of criminal responsibility if its activities contributed to the over-all accomplishment of the criminal enterprise.
I should like to discuss the question of the further steps to be taken procedurally before this Tribunal.
to be heard in connection with the accusations against organizations. The volume of these applications has caused apprehension as to further proceedings. No doubt there are difficulties yet to be overcome, but ay study indicates that the difficulties are greatly exaggerated. entertain an application to be heard. The Prosecution would be anxious, of course, to have every application granted that is necessary, not only to do justice, but to avoid appearance off doing anything less than justice. And we do not consider that expediting this trial is so important as affording a fair opportunity to present all really pertinent facts. applications indicates that their significance is not proportionate to their numbers. The Tribunal sent out 200,000 printed notices of the right to appear before it and defend. They were sent to allied prisoner of war and internment camps. The notice was published in all German language papers and was repeatedly broadcast over the radio. Investigation shows that the notice was posted in all barracks of the camps and it also shows that in many camps it was read to the prisoners, in addition. The 45,000 persons who responded with applications to be heard came principally from about fifteen prisoner of war and internment camps in British or United States control. Those received included an approximate 12,000 from Dachau, 10,000 from Langwasser, 7,500 from Auerbach, 4,000 from Staumuehle, 2,500 from Garmish and several hundred from each of the others. sending out of the notices and we would be glad to place any information we have at the disposal of the Tribunal. principally to determine the reason for these applications and the method by which they came. That investigation was conducted by Lt. Colonel Smith Brookhart, Captain Drexel Sprecher and Captain Krieger, all of whom are known to this Tribunal.
The Auerbach camp is for prisoners of war, predominantly SS members. Its prisoners number 16,964 enlisted men and 923 officers.
The Notice of the International Tribunal was posted in each of the barracks and was read to all inmates.
All applications to the Tribunal were forwarded without censorship. Applications to defend were made by 7,509 SS members. notice and that no action was directed or inspired from any other source within or without the camp. All who were interrogated professed that they had no knowledge of any SS crimes or of SS criminal purpose, but they expressed interest only in their individual fate, rather than any concern to defend the organization. evidence or information to submit on the general question of the criminality of the SS as an organization. They seemed to think it was necessary to protect themselves to make the application here. indicate that most of the members do not profess to have evidence on the general issue triable here. They assert that the writer has neither committed nor witnessed nor known of the crimes charged against the organization. On a proper definition of the issues such an application is insufficient on its face, to warrant a personal intervention. will indicate, I believe, that the notice contains no word which would inform a member, particularly if he were a layman, of the narrowness of the issues which are to be considered here, or that he will have later opportunity, if and when prosecuted, to present personal defenses. On the other hand the notice, it seems to me, creates the impression, particularly on a layman, that every member may be convicted and punished by this Tribunal and that his only chance to be heard is here. I think a careful examination of these notices will bear out that impression and a careful examination of the applications will show that they are in response to that impression. to proceed and this case presents no exception to that; there are different ideas. But I shall advance certain views as to how we should proceed from here to obtain a fair and proper adjudication of these questions.