The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventieth Day: Thursday, 28th February, 1946
(Part 2 of 9)


[Page 40]

The Charter is silent as to the form that these subsequent trials should take. 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 is 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 a crime, "membership in categories of a criminal group or organization declared criminal by the International Military Tribunal." The intention to inflict punishment without a right of hearing cannot be read into of this 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 and held in the locality where the person accused resides, and, incidentally, may be conducted in two languages at most.

And I think it is clear that before any person is punishable for membership in a criminal organization, he is entitled to a hearing on the facts of his case. The Charter does 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 defences of an accused; he may not raise the question in a subsequent trial, whether the organization itself was a criminal one. Nothing precludes him from denying that his participation was voluntary and proving that 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.

The membership which the Charter and the Control Council Act make 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

[Page 41]

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 facts. And he is chargeable not only with what he knew, but with all of which he was reasonably indicted.

There are safeguards to assure that this programme will be carried out in good faith. Prosecution under this declaration is discretionary. If it had been the intention of the Allied Powers to punish these persons without trial, it would have been already done before this Tribunal was set up, and without waiting for its declaration. We think that the Tribunal will presume that the signatory powers which have voluntarily submitted to this process will carry it out faithfully.

The Control Council Act applies only to categories of membership declared criminal. This working on the part of the Control Council recognizes a power in this Tribunal to limit the effect of its declaration. I do not think, for reasons which I will later state, that this should be construed or made use of to try any issue here 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 temper its judgement, to apply only to intentional and voluntary membership. This does not supplant later trials by the declaration of this Tribunal, but guides them.

It certainly cannot be said that such a plan as we have here for severance of the general issues common to many cases, from the particular issues applicable only to individual defendants for litigation in separate Tribunals specially 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. The substantive law which governs the inquiry into criminality of 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 that is 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 drag-net of the law, and rightly watched by courts lest it be abused.

The fact is, however, that every form of government has considered it 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. To 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, practised the same extra-legal coercions, and likewise terrorized by the same sort of weird ceremonials. Like the Nazi Party, it was composed of a core of fanatics, but it enlisted the support of respectable persons who knew it was wrong, but thought it was advantageous. It eventually provoked a variety of legislative acts directed against such organizations, as organizations.

[Page 42]

The Congress of the United States also has enacted legislation outlawing certain organizations. A recent example was on 28th 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.

There is much legislation by States of the American Union creating analogous offences. 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.

Precedents in English law for outlawing organizations and punishing 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 labour."
And the history is that this was a successful act in suppressing violence.

Other precedents in English legislation are the Unlawful Societies Act of 1799, the Seditious Meetings Act of 1817, the Seditious Meetings Act of 1846, the Public Order Act of 1936, and Defence Regulations 18(b). The latter, not without opposition, was intended to protect the integrity of the British Government against the fifth-column activities of this same Nazi conspiracy.

Soviet Russia punishes as a crime the formation of and membership in a 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 in detail as to the Soviet Law.

French criminal law makes membership in subversive organizations a crime. Membership of the criminal gang is a crime in itself. My distinguished French colleague will present you more detail on that.

Of course, I would not contend that the law of a single country, even one 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.

For German precedents, it is neither seemly nor necessary to go to the 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 against organizations inimical to the State.

A law of 22nd March, 1921, against para-military organizations.

A law of July 1922, against organizations aimed at overthrowing the 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."
It would be difficult to draft an act that would more definitely condemn the organizations with which we are dealing here than this German Criminal Code

[Page 43]

of 1871. I recall to your attention that it condemns organizations in which 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.

Under the Empire, various Polish national unions were the subject of criminal prosecutions. Under the Republic, in 1927 and 1928, judgements held criminal the entire Communist Party of Germany. In 1922 and 1928, judgements 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 judgement 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 judgement of criminality against what was called "The Union of Red Front Fighters" of the Communist Party, made no distinction between leaders and ordinary members.

Most significant of all is the fact that on 30th May, 1924, the German Courts adjudicated that the whole Nazi Party was a criminal organization. Evidently there was a lack of courage to enforce that judgement, 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 judgement of illegality by the German courts themselves.

The German courts, in dealing with criminal organizations, proceeded on the theory that all members were held together by a common plan in which each one participated, even though at different 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."
Organizations with criminal ends are everywhere regarded as in the nature of criminal conspiracies, and their criminality is judged by the 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 the 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 the 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."

[Page 44]

That, of course, is a statement of the ordinary law of conspiracy.

The individual defendants are arraigned at your bar on this charge of conspiracy, which, if proved, makes them responsible for the acts of others in execution of the common plan.

The Charter did not define responsibility for the acts of others in 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 divergencies 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 controlled by refinements of any local law.

Now, except for procedural difficulties arising from their number, 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 had never mentioned organizations at all. To become voluntarily affiliated was an act of adherence to some common plan or purpose.

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