The Nizkor Project: Remembering the Holocaust (Shoah)

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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?

MR. JUSTICE JACKSON: Yes, sir.

                                                   [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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