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.
In view of these facts we suggest a consideration of the following program for completion of this trial as to organizations.
1. That the Tribunal formulate and express in an order the scope of the issues and the limitations on the issues to be heard by it.
2. That a notice adequately informing members as to the limitation on issues and the opportunity later to be individually tried be sent to all applicants and published as was the original notice.
3. That a panel of masters be appointed, as authorized in article 17 (e) of the Charter, to examine applications and to report those that are insufficient on their own statements, and to go to the camps and supervise the taking of relevant evidence. Defense counsel and prosecution representatives should, of course, attend and be heard before the masters. The masters should reduce any evidence to deposition form and report the whole to this Tribunal to be introduced as a part of its record.
4. The representative principle may also be employed to simplify this task. Members of particular organizations in particular camps might well be invited to choose one or more to represent them in presenting evidence. that the prosecution has omitted from evidence many relevant documents which show repetition of crimes by these organizations in order to save time by avoiding cumulative evidence. It is not too much to expect that cumulative evidence of a negative character will likewise be limited. might be affected by the declarations of criminality which we have asked. Some people seem more susceptible to the shock of a million punishments than to the shock of five-million murders. At most the number of punishments will never catch up with the number of crimes. However, it is impossible to state, even with approximate accuracy, the number of persons who might be affected by the Declaration of Criminality which we have asked. cause they do not take account of heavy casualties in the latter part of the war, and make no allowance for duplication of membership which was large.
For example, the evidence is to the effect that 75% of the Gestapo men also were members of the SS. We know that the United States forces have a roughly estimated 130,000 detained persons who appear to be members of accused organizations. I have no figure from other Allied forces. But how many of these actually would be prosecuted, instead of being dealt with under the de-Nazification program, no one can foretell. Whatever the number, of one thing we may be sure -- it is so large that a thorough inquiry by this Tribunal, into each case, would prolong its session beyond endurance. All questions as to whether individuals or sub-groups of accused organizations should be excepted from the Declaration of Criminality should be left for local courts, located near the home of the accused and near sources of evidence. These courts can work in one or at most in two languages, instead of four, and can hear evidence which both parties direct to the specific case. tions which, we take it, should be reserved for summation after all of the evidence is presented. But is is timely to say that the selection of the six organizations named in the Indictment was not a matter of chance. The chief reasons they were chosen are these: collectively they were the ultimate repositories of allpower in the Nazi regime; they were not only the most powerful, but the most vicious organizations in the regime; and they were organizations in which membership was generally voluntary. executors of the Nazi Party, and the Nazi Party was the force lying behind and dominating the whole German state. The Reichs Cabinet was the facade through which the Nazi Party translated its will into legislative, administrative, and executive acts. The two pillars on which the security of the regime rested were the Armed Forces, directed and controlled by the General Staff and High Command, and the police forces -the Gestapo, the SA, the SD, and the SS. These organizations exemplify all the evil forces of the Nazi regime. they were not so large or extensive as to make it probable that innocent, passive, or indifferent Germans might be caught up in the same net with the guilty.
State officialdom is represented, but not all administrative officials or departments heads or civil servants; only the Reichs Cabinet, the very heart of Nazidom within the Government, is named.
The Armed Forces are accused, but not the average soldier or officer, no matter how high-ranking. Only the top policy makers -- the General Staff and tthe High Command -- are named. The police forces are accused -- but not every policeman, not the ordinary police which performed only normal police functions. Only the most terroristic and repressive police elements the Gestapo and SD -- are named. The Nazi Party is accused -- but not every Nazi voter, not even every member, only the leaders. And not even every Party official or worker is included; only "the bearers of soverignty", in the metaphysical jargon of the Party, who were the actual commanding officers and their staff officers on the highest levels. Party, just what it isthat we are doing here and compare it with the de-Nazification program in effect without any Declaration of Criminality, in order to see in its true perspective the Indictment which we bring against the Nazi Party.
Some charts have been prepared. This is a mere graphic representation of the proportions of persons that we have accused and which we ask this Tribunal to declare as constituting criminal organizations.
In the first column are the 79 million German citizens. We make no accusation against the citizenry of Germany. The next is the 48 million voters, who at one time voted to keep the Nazi Party in power. They voted in response to the referendum. We make no charge against those who supported the Nazi Party, although in some aspects of the de-Nazification program the supporters are included. Then comes the five million Nazi members, persons who definitely joined the Nazi Party by an act of affiliation, by an oath of fidelity. But we do not attempt to reach that entire five million persons, although I have no hesitation in saying that there would be good ground for doing so, but as a mere matter of practicality of this situation it is not possible to reach all of those who are technically and perhaps morally well within the confines of this conspiracy.
So the voters are disregarded, the 48 million; the five million members are disregarded and the first that we propose to reach are the Nazi leaders, starting with the Blockleiters, which are shown in the last small block, and piled together, amounting to the fourth block on the diagram. responsibilities; responsibilities for herding in to the fold his fifty households; responsibilities for spying upon them and reporting their activities; responsibilities, as this evidence shows, for disciplining them and for leading them. No political movement can function in the drawing rooms and offices. It has to reach the masses of the people and these Blockleiters were the essential elements in making this program effective among the masses of the people and in terrorizing them into submission. moderate one, reaching only persons of admitted leadership responsibilities and not trying to reach people who may have been beguiled into following in an unorganized fashion. and the SS. These were the strong arms of the Party. These were the organizations that the Blockleiter was authorized to call in to help him if he needed to discipline somebody in his block of fifty houses. we accuse any of the twenty or more supervised or affiliated Party groups, Nazi organizations in which membership was compulsory, either legally or in practice, such as the Hitler Youth and the Student League. We do not accuse the Nazi professional organizations, although they were Nazi dominated, like the Civil Servants Organization, the Teachers Organization, the National Socialist Lawyers Organization, although I should show them as little charity as any group. We do not accuse any Nazi organizations which have some legitimate purpose, like welfare organizations.
Only two of these Party formations are named, the SA and the SS, the oldest of the Nazi organizations, groups which had no purpose other than carrying out the Nazi schemes and which actively participated in every crime denounced in the Charter, and furnished the manpower for most of the crimes which we have proved. of these crimes against peace, crimes against humanity and war crimes, it would be a greater catastrophe to acquit these organizations than it would be to acquit the entire twenty-two individual defendants in the box. These defendants' power for harm is spent. That of these organizations goes on. If these organizations are exonerated here the German people will infer that they did no wrong and they will easily be regimented in reconstituted organizations under new names behind the same program. these organizations only by concluding that no crimes have been committed by the Nazi regime. For these organizations' sponsorship of every Nazi purpose and their confederation to execute every measure to attain these ends is beyond denial. A failure to condemn these organizations under the terms of the Charter can only mean that such Nazi ends and means cannot be considered criminal and that the Charter of the Tribunal declaring them so is a nullity. to deal with, would like to be heard on this subject.
THE PRESIDENT: Mr. Justice Jackson and Sir David Maxwell-Fyfe, the Tribunal thinks the most convenient course would be to hear argument on behalf of all the chief prosecutors and then to hear argument on behalf of such defendants' counsel as wish to be heard and after that the Tribunal will probably wish to ask some questions of the chief prosecutors.
MR. JUSTICE JACKSON: That will be very agreeable to us.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal: Mr. Justice Jackson has dealt with the general principles under which the organizations named in the Charter should, in the view of the Prosecution, be dealt with. It is not my purpose to repeat or to underline his arguments. My endeavor is to comply with Paragraph 4 of the statement of the Tribunal made on the 14 of January of this year.
This involves:
(a) Summarizing in respect of each named organization, the elements which in our opinion justify the charge of their being criminal organizations. For convenience I shall refer to these as the elements of criminality.
(b) Indicating what acts on the part of individual defendants in the sense used in Article 9 of the Charter justified declaring the groups or organizations of which they are members to be criminal organizations. Again for convenience, I shall refer to such defendants in the wording of the Charter, as connected defendants.
(c) I shall submit that what I have put forward in writing under (a) and (b) will form the necessary summary of proposed findings of fact under the Tribunal's third point.
May I say one word about the mechanics of the position? I thought that it would be convenient if the Tribunal and the Defense Counsel had copies of these suggestions before I address the Tribunal. In pursuance of this, copies have been given to the members of the Tribunal, of course to the court interpreters, and copies in German have been provided for counsel for the organizations and also for counsel for each of the individual defendants. two addenda, which contain further references to the transcript and documents on a number of points in the original appendices. These addenda are compiled under the numbers of paragraphs and although they are in English, should be readily usable by Counsel for the Defense. The result is that there is the summary in appendices (a) and (b) which I put in and full reference on all the points in the summary to the transcript and in some cases to documents. my appendix (a) and appendix (b) but to indicate how they fit in with the conception of the Prosecution on this aspect of the case. I shall, of course, be only too ready to read any portions which may be convenient to the Tribunal.
Justice Jackson has indicated, and perhaps the Tribunal will bear with me while I repeat his five points.
1. The organization of the group in question must be some aggregation of persons (a) in some identifiable relationship (b) with a collective gerenal purpose. That was Mr. Justice Jackson's first test.
2. Membership in such organization must be generally voluntary, although a minor proportion of involuntary members will not affect the position.
3. The aims of the organizations must be criminal in the sense that its objects included the performance of acts denounced as crimes by Article VI of the Charter.
4. The criminal aims or methods of the organization must have been of such a character that a reasonable man would have constructive knowledge of the organization which he was joining; that is, that he ought to have known what type of organization he was joining.
5. Some individual defendants, at least one, must have been a member of the organization and must be convicted of some act on the basis of which a declaration of the criminality of the organization can be made. organizations, but I conceive that this can be done with brevity, and I therefore propose to deatl with the organizations seriatim.
I take first the Reichsregierung. Under appendix B of the Indictment this group is defined as consisting of three classes:
1. Members of the ordinary cabinet after the 30th of January 1933. The term "ordinary cabinet" is in turn used as meaning-
(a) Reich ministers, that is, heads of departments;
(b) Reich ministers without portfolio;
(c) State ministers acting as Reich ministers:
(d) Other officials entitled to take part in meetings of the cabinet. of the Reich.
no doubt that the first of Mr. Justice Jackson's points, point one, is complied with in that there is an identifiable relationship with a collective general purpose, and that this organization is generally voluntary within point two. of my Appendix A and the broad submission of the prosecution is shown in paragraph two, that is short. It I might be allowed to read it?-
"Owing to their legislative powers and functions the members of the Reichsregierung gave statutory effect to the policy of the Nazi conspirators and collectively formed a combination of persons carrying out the executive and administrative decisions of the Nazi conspiracy." by Article VI of the Charter in paragraphs five, six, seven, and eight of that appendix. should be pleased to read and comment on any that it is desired. legislative, administrative, and executive powers and functions, and that many of its members held at the same time important positions in the Party and in governmental activities outside the cabinet, enormous political power was concentrated in this group. the program of the conspirators. that seventeen of the twenty-one defendants before the Court were members of the Reichsregierung. The prosecution have submitted an enormous body of evidence against these seventeen defendants, and they now submit that it is sufficient to say that these seventeen defendants should be convicted under eac count of the Indictment, and therefore under each portion of Articla VI of the Charter; and that they form the connected defendants with the Reichsregierung, under Mr. Justice Jackson's point number five. my Appendix A and the other paragraphs are of such a character that no one in a ministerial capacity could fail to have constructive knowledge of their nature and intent.
I now pass to the leadership corps of the Nazi Party. Mr. Justice Jackson has indicated that the conspirators required wide instruments of support. Hitler boasted of the complete domination of the Reich and of its institutions and of its organizations, internal and external, by the National Socialist Party. were determined not by the membership as a whole but by the corps of bearers of sovereignty and their staff. These leaders were all political deputies obliged to support and carry out the doctrines of the Party. questions of policy and working measures. The leaders held the Party together, but they also kept the entire populace firmly in the grip of the conspirators through the control of the descending hierarchy of leaders. which they claim to be criminal; and as Mr. Justice Jackson pointed out the staffs of the Reichsleiter, Gauleiter, and Kreisleiter, which are set out in the volumes of the National Socialist Organization Yearbook as being in those positions. Hoheitstraeger, as Mr. Justice Jackson has pointed out, and on that the prosecution again say that there is no doubt that points one and two of Mr. Justice Jackson's criteria are complied with, and they indicate in paragraphs one, two three, and four of Section B of my Appendix A the element of criminality; they indicate in my Appendix B the defendants who are involved; and in a later portion of Appendix B they submit that from the position of these defendants as members of the Leadership Corps and in the government and the Nazi Party, and further, from the close inter-connection between the government of the Reich and the Party it is clear that the Leadership Corps is a criminal organization connected with all the crimes charged against all the defendants in the Indictment, including those who were in the Leadership Corps and elaborated before the Tribunal in the individual presentations.
and the defendants are the core of the Nazi Party. Again the prosecution say that no one living in Germany and taking part in the management, which in this case means literally the ordering of the Nazi Part, could fail to have constructive knowledge of the intentions of its leaders and the methods of carrying these out. This inner circle is in a very different position from even the best-informed opinion outside Germany.