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 6 of 9)


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I remind the Tribunal, however, that the grouping of these positions is not artificial in reality, because on Page 309 (Part 3) and the following pages of Colonel Telford Taylor's presentation - and I refer especially to Pages 314 and 315 - it will be seen how the holders of the positions enumerated met in fact and in the flesh. This, in our submission, clearly comes within the interpretation of "group" in the Charter, which, as Mr. Justice Jackson pointed out, has a wider connotation than "organization," and we submit that you cannot hold men in the top command against their will.

It would be impossible for them to carry on such work on such a condition.

Under Section F of my Appendix A, read with the first addendum, there will be found not only the references in the transcript, but the references to the captured documents which prove, out of the mouths of the members of this group, the criminality alleged against them under each part of Article 6 of the Charter. These documents also show their actual knowledge and therefore, a priori, their constructive knowledge of the nature of the act.

In my Appendix B, the five defendants involved are set out, and in the latter part of that appendix the connection of the group, and especially of the defendants

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Keitel and Jodl, is emphasized. It is submitted that these facts prevent any difficulty being encountered with regard to this group on any of the five criteria which we say should guide the Tribunal.

Finally, may I repeat that in our respectful submission the facts contained in Appendices A and B which are before the Tribunal in writing, clearly indicate the findings of fact for which the prosecution asks.

My friend, M. Champetier de Ribes will address the Tribunal.

M. CHAMPETIER DE RIBES: May it please the Tribunal, Mr. President and gentlemen, I shall be careful not to add anything to the very complete statements of Mr. Justice Jackson and Sir David Maxwell Fyfe.

In agreement with my fellow prosecutors, I should like respectfully to draw the Tribunal's attention only to two clauses of French internal law which deal with questions comparable to those which we are considering to-day, and in connection with which I believe the French Legislature has had to solve some of the problems with which the Tribunal is concerned, and especially to reply to the question put by the Tribunal, namely, the definition of the criminal organizations.

I shall merely mention Article 265 of the French Penal Code which lays down the general principle of the association of criminals by enacting that:-

"Any organised association, whatever its structure or the number of its members, any understanding made with the object of preparing or committing crimes against persons or against property, constitutes a crime against public peace."
But I should like to draw the attention of the Tribunal to this fact, that in the course of the last few years France has had occasion to apply this general principle to organizations which greatly resemble those which we are asking you to declare criminal.

It is known indeed, gentlemen, that Nazism is a contagious disease, the ravages of which threaten to go beyond the borders of the countries which it has definitely contaminated. Thus, during the years 1934 to 1936, diverse groups had been formed in France, which, following the example of their German and Italian models, were organized with the intention of substituting themselves for the legal government in order to impose on the country what they called "order," but which was in reality only disorder.

The French Republic in 1936 did what the Weimar Republic ought to have done. The law of 10th January, 1936, promulgated on 12th January in the Official Gazette, which I submit to the Tribunal, and a translation of which was given to the defence, decreed the dissolution of these groups and enacted severe penalties against their members. With the Tribunal's permission, I shall read the first two clauses of this law:-

"Article 1. By decree of the President of the Republic in session with the Cabinet, all associations or de facto groups shall be dissolved which

(1) might provoke armed demonstrations in public thoroughfares;

(2) or which, with the exception of societies for military preparation sanctioned by the Government and societies for physical education and sport, might by their structure and their military organization have the character of a fighting group or a private militia;

(3) or which might aim at jeopardizing the integrity of the national territory or at attempting to alter by force the republican form of government.

Article II. Any person who has taken part in the maintenance or the reconstitution, direct or indirect, of the association or group as defined in Article I, will be punished by a term of six months to two years imprisonment and a fine not exceeding 5,000 francs."

The Tribunal will observe in the first place that by imposing severe penalties on members of these associations for the mere fact of "having taken part in the maintenance or the reconstitution, direct or indirect, of the association", the law

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of the 10th of January, 1936 has recognized and proclaimed the criminal character of the association.

The Tribunal will observe in the second place, that neither the Penal Code, nor the Law of 10th January, 1936 are concerned with giving an exact definition of the association, nor with the question as to whether the incriminated association constitutes a moral entity, or a legal entity having a legal existence.

Article 265 of the Penal Code includes in its condemnation not only any association which means a legal entity, but also condemns any agreement entered into with the object of preparing or committing crimes. And the Law of 10th January also mentions any association, or any de facto group. Thus the law of l0th January, in the same way as Article 265 of the Penal Code, speaking of agreements entered into or de facto groups, does not seek to define legally criminal organizations, and refers to the commonly accepted meaning and implication of the words "Group" or "Organization" as we today ask you to define them.

In the same way, after the liberation of our country, the French Government concerned itself with pursuing and punishing bad citizens who, even without offending against an existing penal statute, had been guilty of definite antinational activity; and issued the decree of 26th August, 1944, promulgated in the Official Gazette of 28th August. This decree, after having given a very general definition of the offence, defined its extent by enumerating the essential facts which it co

mprises. Thus, Article 1 of the decree of 26th August, 1944, states that the crime of national indignity is constituted by the fact of

"having participated in a collaboration or organization of any kind, and more especially one of the following: Le Service d' Ordre Legionnaire (Legion of Order), La Milice (Militia), the Group called 'Collaboration,' La Phalange Afticaine (Aftican Phalanx), and so on."
The decree of 26th August, 1944, is much less concerned with defining the punishable offence than with enumerating the criminal organizations to which the fact of having adhered voluntarily constitutes the crime of national indignity; and whether these organizations or these groups are legally constituted organizations or simply agreements entered into as mentioned in Article 265 of the Penal Code, or merely de facto groups, as stated in the Law of 1936, the decree does not define; it enumerates the organizations which are considered to be criminal. That is what we are asking you to do with respect to the German Organizations mentioned in the Indictment.

We are not asking you to condemn without having heard these men who, on the contrary, will be able to put forward their personal defences before a competent tribunal. We are asking you only to declare criminal, as was allowed by the French Laws of 1936 and 1944, de facto groups, without which it would have been impossible for one man in a few years to cause a great civilized nation to sink to the lowest depths of barbarity; the more hateful, because it was scientific. It is the shame of our time that the mastery of technique should have placed new methods at the disposal of ancient barbarity, so true is it that technical progress is of no avail unless accompanied by moral progress.

Your sentence will signify for all nations in the world, and for the good of Germany herself, that above human liberties there exists a moral law which imposes itself upon nations just as well as upon individuals, whether they be: isolated or in groups, and that it is criminal to violate that moral law.

GENERAL RUDENKO: Your Honours, let me tell you, first of all, that I accept the principle which has been expressed by my respected colleagues Mr. Justice Jackson and Sir David Maxwell Fyfe; the principle with regard to the criminality of the Organizations. It seems to me that to clarify this question it is necessary to distinguish clearly two interwoven problems: firstly, the problem of the material law; just what organizations and what individual members or groups of individual members can be considered criminal; and secondly the problem of

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objective law; what evidence, what documents, what witnesses, and in what order these can be presented to agree to declare or to deny the criminality of this or that organization.

First of all, as to the question of material law, it is necessary to amplify that the question of the criminal responsibility of an organization does not stand before the Tribunal and never did: neither does the question of the individual responsibility of the various members of an organization, except those who are among the defendants today, or the various groups of these organizations, stand before the Tribunal. The Charter of the Tribunal provides as follows: according to Article 9, the examination or the trial of any individual member of this or that group or of any organization is within the jurisdiction of the Tribunal. It is within the jurisdiction of the Tribunal to declare this or that organization criminal if one of the defendants belongs to the organization.

Thus, we speak here about declaring an organization criminal, and the Charter definitely provides the legal consequences of declaring an organization criminal. As the Tribunal declares this or that group, or organization criminal, then the competent national authorities of the signatory powers have a right to bring to trial before the national military tribunals and occupational tribunals members of organizations. In this case the criminal nature of the organizations is considered clear, and cannot be contradicted. (Article 10 of the Charter).

Consequently the Charter provides two legal results of declaring an organization criminal: first, the right, but not the obligation, of the various national tribunals to bring to trial members of organizations which the Tribunal declared criminal; and second, the obligation of the national tribunals to consider an organization criminal if such an organization was so declared by the International Military Tribunal.

In such a manner, the result of declaring an organization criminal by the International Military Tribunal does not automatically mean that all members of the organization will also be declared criminal by the national tribunals; neither does it mean that without exception all members of such an organization must be brought to trial. The question of individual guilt and of individual responsibility of the separate members of the criminal organizations is wholly, and without exception, within the jurisdiction of the national tribunal.

As has already been pointed out, in Article 10 of the Charter the Tribunal limits the jurisdiction of the national tribunal in just one way. The national tribunal cannot deny or cannot argue the criminality of any organizations which have already been declared criminal.

My colleague, Mr. Justice Jackson, has already tendered valuable information about the legal codes of the respective countries concerning the question of responsibility. Under English-American law, French law and also the Soviet legal Code, it is provided that membership in an organization which has criminal aims makes an individual liable. There are two legal decrees on the subject, in the U.S.S.R. Penal Code, Articles 58 and 59 (3). These laws provide for the responsibility of members of criminal organizations. They are considered criminals, not only for committing crimes, but also for belonging to an organization which is considered criminal. The very fact of belonging to an organization, the law states, makes a person liable to prosecution. The law does not require formal proofs to decide if a person is a member of a criminal organization. A person can be a member of a criminal organization, even though he does not formally belong to the organization. The evidence is all the more exhaustive if a person is formally put on the list of the membership of a criminal organization. However, the formal membership of a criminal organization is not the only basis of criminal responsibility of a person. A member of the organization should know what is the nature of the organization, what are its objectives. It is immaterial whether an individual member knew all directives, all acts of the organization or whether he knew personally all the other members.

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One cannot help noting that on the basis of the general principles of the law, especially in connection with the practice of fascist Germany where a whole network of criminal organizations functioned, established by the usurpers of the supreme powers, the responsibility of individual members of the organization does not necessarily imply that they were aware of the penalties attaching to the acts committed by the organization.

On the basis of the legal code, especially in fascist Germany, where there existed a whole series of organizations established by the usurpers of power, now considered criminal, it is impossible to demand that every member be acquainted with all the actions and all the members and all the directives of the organization.

May I now pass on to the next problem. It appears to me that there is a certain degree of complexity attached to the problem of the criminal organizations. There is very extensive correspondence by members of various organizations, that has been submitted to the Tribunal on the subject of these organizations. Such abundance of discussion, comes from an incorrect interpretation of legal proceedings if an organization is declared criminal. As long as we know the fact that the question of the individual responsibility of the individual members is fully within the jurisdiction of the various national courts, the general question of whether the organization is declared criminal or not is much easier to follow.

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