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 3 of 9)


[Page 44]

These organizations did not pretend to be merely social or cultural groups admittedly, the 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 discipline. That all members of each Nazi organization did combine under a common plan to achieve some end by combined efforts is abundantly established.

The criteria for determining whether these ends were guilty ends are 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 antitrust laws, or other defendants accused under the narcotic drugs acts, sedition acts, or other Federal penal enactments.

Among the principles every day enforced in courts of Great Britain and the United States in dealing with conspiracy are the following:-

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.

Secondly, one may be liable even though he may not have known who 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 the criminal acts occurred.

Thirdly, there may be liability for acts of fellow conspirators, although 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 covering authority to accomplish the ends of the conspiracy.

Fourthly, it is not necessary to liability that one be a member of a conspiracy at the same time as others, or at the time of the criminal acts. When one becomes a party to a conspiracy, he adopts and ratifies what has gone before and remains responsible until he abandons the conspiracy with notice to his fellow conspirators.

Now, these are broad principles, but no society has been able to do without these defences against the accumulation of power through aggregations of individuals.

[Page 45]

Members of criminal organizations or conspiracies who personally commit crimes, of course, are individually punishable for those crimes exactly as are those who commit the same offences 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 one's 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, considered by themselves.

The very innocent act of posting a letter is enough to involve one in a conspiracy if the purpose of the letter is to advance a criminal plan. And we have very numerous examples in the jurisprudence of the United States where the posting of a letter brought one not only within the orbit of the definition of crime, but within Federal jurisdiction.

There are countless examples of the doctrine that innocent acts in the performance of a common purpose render one liable for the criminal acts of others performed to that same end.

This conception of the law of conspiracy is an important consideration in 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 discipline and chain of command, cannot be less than that vicarious liability which follows from informal co-operation with a nebulous group, as is sufficient in case of a conspiracy.

This meets the suggestion that the prosecution is required to prove every member, or every part, 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 sub-section would set a task not possible of completion within the lives of living men.

It is easy to toss about such a plausible but superficial cliche 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 handed to a passive citizen like a handbill. Even a nominal membership may aid and abet a movement greatly.

Does anyone believe that the picture of Hjalmar Schacht sitting in the front row of the Nazi Party Congress, which you have seen, wearing the insignia of the Nazi Party, was included in the propaganda film of the Nazi Party merely for artistic effect? The great banker's mere loan of his name to this shady enterprise gave it a lift and a respectability in the eyes of every hesitating German. There may be instances in which membership did not aid and abet organizational ends and means, but individual situations of that kind are for appraisal in the later hearings and not by this Tribunal.

By and large, the use of organizational affiliation is a quick and 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.

While the Charter does not so provide, we think that on ordinary legal principles the burden of proof to justify a declaration of criminality is, of course, 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

[Page 46]

that every member was a volunteer. Nor does it mean that an organization is not to be considered voluntary if the defence 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 politics 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 authorize 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 a 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.

I shall now take up the subject of the issues, as we see it, which are for trial before this Tribunal, and some discussion of those which seem, to us, not to be for trial before this Tribunal.

Progress of this trial will be expedited by a clear definition of the 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.

We think it is not relevant to this proceeding at this stage that one or many members were conscripted if, in general, the membership was voluntary. It may be conceded that conscription is a good defence for an individual charged with membership in a criminal organization, but an organization can have criminal purpose 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.

Also, we think it is not relevant to this proceeding that one or more members of the named organizations were ignorant of its criminal purposes or methods, if its purposes or methods were open or notorious. An organization may have criminal purposes and commit criminal acts although one or many of its members were without personal knowledge thereof. If 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.

It is not relevant to this proceeding that one or more members of the named organizations were themselves innocent of unlawful acts. This proposition is basic in the entire theory of the declaration of organizational criminality. The purpose of declaring criminality of organizations, as in every conspiracy charge, is

[Page 47]

punishment for aiding crimes, although the precise perpetrators can never be found or identified.

We know that the Gestapo and the SS, as Organizations, were given principal responsibility for the extermination of the Jewish people in Europe, but beyond a few isolated instances, we can never establish which members of the Gestapo or SS actually carried out the murders. Most of them were concealed by the anonymity of the uniform, committed 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 of direct participation in such crimes, if we can find and identify him, can be tried on the charge of having committed the specific crimes, in addition to the general charge of membership in a Criminal Organization.

Therefore, it is wholly immaterial that one or more members of the Organizations were themselves allegedly innocent of specific wrongdoing. The purpose of this proceeding is not to reach instances of individual criminal conduct, even in subsequent trials, and therefore such considerations are irrelevant here.

Another question raised by the Tribunal is the period of time during which the Groups or Organizations named in the Indictment are claimed by the prosecution to have been criminal. The prosecution believes that each Organization should be declared criminal for the period stated in the Indictment. We do not contend that the Tribunal is without power to qualify its declaration so as to cover a lesser 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 time affords adequate evidence to support the charge of criminality with respect to each of the Organizations during the full time set forth in the Indictment.

Another question raised by the Tribunal is whether any classes of persons included within the accused Groups or Organizations should be excluded from the declaration of criminality. It is, of course, necessary that the Tribunal relate its declaration to some identifiable Group or Organization. The Tribunal, however, is not expected or required to be bound by formalities of organization. In framing the Charter, the use was deliberately avoided of terms or concepts which would involve this trial in legal technicalities about the legal standing of persons or entities.

Systems of jurisprudence are not uniform in clarifying these matters 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 Charter as a broader term, implying a looser and less formal structure or relationship than is implied in the term, "Organization." The terms mean in the context of the Charter what they mean in the ordinary speech of people. The test to identify a Group or Organization is a natural and common-sense one.

It is important to bear in mind that, while the Tribunal has, no doubt, power to make its own definition of the Groups it will declare criminal, the precise composition and membership of Groups and Organizations is not an issue for trial here. There is no Charter requirement and no practical need for the Tribunal to define a Group or Organization with such particularity that its precise composition or membership is thereby determined.

The creation of a mechanism for a later trial of such issues was a recognition that the declaration of this Tribunal is not decisive of such questions, and is likely to be so general as to include persons who on more detailed inquiry will prove to be outside of it.

Any effort by this Tribunal to try questions of exculpation of individuals, be they few or many, would unduly protract the trial, transgress the limitations of the Charter, and quite likely do some mischief by attempting to adjudicate precise boundaries on evidence which is not directed to that purpose.

THE PRESIDENT: Would this be a convenient time for you to break off for a few moments?


[Page 48]

(A recess was taken.)

The Prosecution stands upon the wording 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 for conserving the Tribunal's time combine with practical considerations for defendants. A single trial held in one city to deal with question of excluding thousands of defendants living all over Germany could not hope to do justice to each member unless it was expected to continue indefinitely. Provision for later, local trials of individual relationships protects the rights of members better than can possibly be done in proceedings before this Tribunal.

With respect to the Gestapo, the United States, and I believe all my colleagues, consent to exclude persons employed in purely clerical, stenographic, 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 Reichsleiter, main departments and office holders, the Gauleiter and their staff officers, the Kreisleiter and their staff officers, the Ortsgruppenleiter, the Zellenleiter and the Blockleiter, but not members of the staff of the last three officials.

As regards the SA, it is considered advisable that the Declaration expressly exclude (1) wearers of the SA Sports Badge; (2) the SA controlled Home Guard Units, which were not, as we view it on the evidence, strictly a part of the SA; and that 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.

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